VEDAMMAL Vs. VEDANAYAGA MUDALIAR

JUDGEMENT

(1.) It has been decided by this Court that, if the defendant was a party to the murder of her son, she must be excluded from the inheritance and that the plaintiff, as next reversioner, is entitled to succeed. It is also clear that the fact that the defendant has been acquitted of the charge of murder is no answer to the present suit. But in order to entitle the plaintiff to succeed, it is, of course, necessary that he should establish the complicity of the defendant by clear and satisfactory evidence, and it is not enough to raise a case of suspicion against her. In the present case there can be no doubt that the connection formed by the defendant with the Mahomedan, Sheik Abdul Khader, who has been convicted of the murder of her minor son, was the original cause of trouble; and it may be that the attitude of the minor in regard to his mother's conduct was such as to give her as well as the Mahomedan a motive for desiring to get rid of him. But in order to enable the plaintiff to succeed, it is necessary that he should connect her by satisfactory evidence with the murder, and this, I think, he has failed to do. When the evidence is scrutinised, proof of her complicity is found to rest almost exclusively on the evidence of the approver Bala Naiken, the plaintiff's 7 witness. According to him, on the day of the murder, she went with the murderers from Vikramasingapuram to Ambasamudram, and at the latter place she first instigated the others to commit the murder and then expressed her approval after it had been committed. The evidence of instigation was given by the approver for the first time in this case more than five years after the event and after the approver had omitted to mention it in any of the statements taken from him during the criminal proceedings against the defendant; and, as pointed out by the Sessions Judge in his judgment which has been filed as Exhibit RR by the plaintiff, the approver's statement as to the defendant having expressed her approval of the murder after it had been committed did not appear in his earliest statement. There is, therefore, strong reason to suspect that he has lent himself to concocting a case against the defendant, and his evidence connecting the defendant with the crime requires to be clearly corroborated, not only because of his being an approver but also because of the tendency he has shown to add to his evidence against the defendant at successive stages of the case. On examining the evidence, I fail to find any satisfactory corroboration of his statements. The plaintiff's 10 witness, an old man of 73, now comes forward for the first time, five years after the event, and says that he saw the Mahomedan and others arrive in a cart at Ambasamudram on the day of the murder and afterwards went to the Mahomedan's house to ask for payment of a debt of Rupees fifteen arid saw the defendant there. I think it would be unsafe to give any credence to evidence of this character. The plaintiff's witness No. 15 corroborates the plaintiff's witness No. 7 by speaking to having met the cart containing the four murderers on the road from Vikramasingapuram, where the defendant lives, to Ambasamudram where the Mahomedan's house was, but does not speak to the defendant's presence in the cart, and his evidence is quite consistent with the defendant's innocence. The new evidence of the plaintiff's witnesses Nos. 13 and 14 that, after the trial in the Sessions Court, as the Mahomedan was being led away, the defendant, in the presence-of about 100 people, addressed him in a language which amounted to an admission of guilt is, in my opinion, improbable and unreliable. Besides, the plaintiff's witness No. 13 certainly speaks as if the acquittal of the defendant and the sentence on the Mohomedan took place at the same time and were immediately this incident, whereas the Mahomedan was not sentenced until some days after the defendant had been acquitted and discharged. With regard to the evidence as to the defendant's behaviour subsequently to the murder, it must be borne in mind that her conduct had been such as to set people against her and lead them to put the worst construction on her actions, and that further, supposing her innocent, her position was a very difficult one when it came out that her paramour had murdered her son and then absconded. She must naturally have been suspected and shunned by every one, and have found it very difficult to know what to do. Under these circumstances, I think, it would be very unsafe to draw inferences against her from her unwillingness to obey the Tahsildar's summons, or the other conduct spoken to by the witnesses for the plaintiff. The judgment of the Subordinate Judge, in my opinion, proceeds too much on grounds of mere suspicion and accepts, and acts on, the evidence of the approver, plaintiff's witness No. 7, which, in my opinion, is not sufficiently corroborated. I am, therefore, unable to agree with his finding on the second issue as to the defendant's complicity in the murder.

(2.) It is, however, further argued for the respondent that the defendant is debarred from succeeding to her son by reason of her unchastity which, we agree with the lower Court, has been established by the evidence in the case. The Subordinate judge overruled this contention on the authority of Kojiyadu V/s. Lakshmi (1882) I.L.R. 5 M. 149 which is directly in point; but in this Court it has been argued that the learned Judges who decided the case in Kojiyadu v. Lakshmi (1882) I.L.R. 5 M. 149 erred in following Advyapa V/s. Rudrava (1880) I.L.R. 4 B. 104 as that case merely lays down the law applicable in Western India, and a different rule prevails in Southern India. Although the Mitakshara says nothing expressly about women other than widows being debarred from succession by unchastity, it is contended that it must be read with the Smriti Chandrika which is applicable to Southern India, and that, according to this authority, unchastity is a bar. I am unable to accept this contention. It is true that in Chapter XI, Section 2, pl. 26, p. 190, of Krishnasami's translation, the Smriti incorporates the text of Brihaspati as to the qualifications of a daughter to succeed, one of which is that she is to be "virtuous and devoted to obedience," but in Chapter V. pl. 15, the same authority adopts a text of Brihaspati excluding sons destitute of virtue from inheritance. It cannot now be argued that a son could be excluded on the ground that he was destitute of virtue, and I fail to see why a different rule should be applied to daughters. The unchastity of the widow is expressly laid down as a ground of exclusion in numerous texts, but there is no such clear authority in favour of excluding other females, and in the absence of clear authority such exclusion ought not, in my opinion, to be enforced. For these reasons and for the reasons given by the learned brother whose judgment I have had the advantage of reading, I see no grounds for refusing to follow the decision in Kojiyadu V/s. Lakshmi (1882) I.L.R. 5 M. 149. It was further argued that illicit intercourse with a person not belonging to an equal or superior caste ipso fcto produces degradation without any formal exclusion from caste, but, even if this be so,, degradation does not affect merely proprietary rights of the degraded person since the passing of Act XXI of 1850 Subbaraya Pillai V/s. Ramasami Pillai (1900) I.L.R. 23 M. 171 and there is no authority forth e contention that aggravated unchastity has that effect. In the result, I think, the appeal must be allowed and the plaintiff's suit dismissed with costs throughout. Sankaran Nair, J.

(3.) This is an appeal from the decision of the Subordinate Judge, declaring that the plaintiff is entitled, as the nearest reversioner, to the properties of Sankaramurthi Mudali in preference to his mother, the defendant, who, it is contended, has forfeited her rights on account of her having been a party to the murder of her son Sankaramurthi "and owing also to her unchastity and loss of caste."