Report No. 110
V. Need for Provision in The Indian Succession Act
49.16. Existing sections in the Act as to disability of murderer.-
The Indian Succession Act is, however, lacking in a specific provision on the subject, as already stated.1 At present, the only provision of the Act under which a murderer can possibly be debarred from taking advantage of his own wrong is section 263, by which the grant of probate or letters of administration could be revoked or annulled for a "just cause". This is not, however, a bar of the right to succeed, whether on intestacy or on testamentary succession. If any such bar is to be read, it has to be derived from the general principles of law which have been mentioned above in the context of a discussion of the law before the Hindu Succession Act2 and the rule at common law.3
In this position, prima facie, there is need for inserting a suitable provision on the subject in the Succession Act, so as to make the Act comprehensive. On the merits, there can hardly be any doubt, as to the soundness of the principle.
1. Para. 49.1, supra.
2. Para. 49.4, supra.
3. Para. 49.8, supra.
49.17. Debate as to mens rea.-
Certain questions of detail may, no doubt, require attention. There has, for example, been much debate in England whether the principle should have any application if the criminal has no mens rea, but is nevertheless found guilty of a criminal offence.1
This problem may, for instance, arise if the accused is convicted of a statutory offence of strict liability or (in England) is found guilty of man-slaughter by reason of diminished responsibility. In England, some Judges have respected any such distinction.
In their view, to accept it would be to encourage sentimental speculation as to the motives and degrees of the moral guilt of a person who has been justly convicted.2
1. Goff and Jones Law of Restitution, (1978), p. 486.
2. Estate of Hall (in re:), (1914) Probate 17, per Hamilton L.J.
49.18. Decision in Re. Giles.-
Thus, in Re. Giles,1 Pennycuick V.C. refused to analyse the ground upon which the courts have established this rule of public policy, "It is sufficient to say that the rule has been established and that the deserving of punishment and moral culpability are not necessary ingredients of the type of crime to which this rule applies, that is culpable homicide, murder or manslaughter". Consequently, he held that a person convicted of manslaughter could not benefit under his victims's will, even though he was found guilty through diminished responsibility.
In the case referred to above,2 Lilian Myra Giles struck her husband a single blow on the head with a domestic chamber pot, with the result that he dies ten days later. The deceased had made a will in favour of his wife.
1. Giles (in re:), (1971) 3 WLR 640: (1972) Ch 544 (552).
2. Giles (in re:), (1971) 3 WLR 640.
49.19. But the decision referred to above1 has not escaped criticism. Goff and Jones state their comments in this respect as follows2:-
"It is to be hoped that these views will not prevail. Fears that the relaxation of Fry, L.J.'s principle would be "harmful and dangerous" are, in our opinion, misconcieved. There is much to be said for the view that the principle should have no application if the criminal has no mens rea, but is nevertheless found guilty.
It is hardly defensible that a person who is 'guilty but insane' can take a benefit under his victim's will,. but a person who is guilty by reason of diminished responsibility cannot."
Another writer has observed3:-
"The time seems ripe for a full consideration of the issues involved. The most that can be expected of the courts is to limit the rule to murder and manslaughter, and even to exclude manslaughter based on negligence would now call for much judicial valour. Beyond this, it seems necessary to look to Parliament."
1. Giles (in re:), (1971) 3 WLR 640.
2. Goff and Jones Law of Restitution, (1978), p. 486.
3. Gareth Miller, Note: Slaying a Testator, (1972) 35 Modem Law Review 426, 428.
49.20. Negligence not to be converted.-
In India, the legislature has not had an opportunity of examining the pros and cons of the matter. Having considered the position carefully, we are of the view that the proposed disability in regard to succession should apply to cases of culpable homicide (whether or not amounting to murder), but should not extend to cases showing a lesser degree of mens rea-e.g. causing death by rash or negligent act.1
Public police-and the principle that no man should profit by his own "wrong"-do not seem to necessitate the imposition of a disqualification in cases of rashness or negligence. It is true that for reasons of deterrence, the criminal law in most countries punishes rash or negligent conduct causing death (or certain other civil consequences). But such conduct does not attract the doctrine that no man should profit by his own "wrong". The emphasis that the doctrine places on "wrong" would seem to indicate that its demands would be amply met by confining the disability to cases where the mental element is of the quality described in section 299 of the Indian Penal Code.
1. See draft in para. 49.17, infra.
49.21. Offence under section 304A, I.P.C.-
In particular, the offence under section 304A, I.P.C. (causing death by rash or negligent act) is of infinite variety. It may cover even a situation where the morally culpable element is minimal. Serious cases of rashness would really fall under section 304 (read with section 299) of the Indian Penal Code.
Extreme cases of rashness would fall even under section 302 (read with section 300, fourth clause). These two sections, read together, cover a really "culpable homicide"-culpable in the moral sense. Only cases with a lesser degree of mental element would fall within section 304A. It is on this rationable that there is justification for not attaching a disqualification (in regard to succession) to mere rashness or negligence which does not indicate a quality of mens rea covered by sections 299 and 300 of the Indian Penal Code.
49.22. Cases under section 304A, I.P.C.-
Some illustrative cases under section 304A of the Penal Code may be referred to in this context. In one Allahabad case,1 the accused (a woman) received a powder from an enemy of her relative, took no precaution to ascertain whether it was noxious and mixed it with the relative's food, believing that by so doing she would become rich. It was held that her conduct was wanting in that prudence and circumspection which every human being is supposed to exercise, and as, by her rash and thoughtless act, she had caused death, she was guilty of an offence under section 304A, I.P.C.
In a Calcutta case,2 the accused operated on another person for internal piles by cutting them out with an ordinary knife. The man died from hemorrhage. The Court held that he had no intention to cause the death of the patient. In the circumstances of the case, it was held that the conviction under section 304A was a proper one.
In another case,3 the facts were as follows:-
The factory manufacturing fireworks etc. was situated in close proximity to residential quarters. An explosion in the factory resulted in injuries to, and death of, some persons. The explosives were of highly hazardous and dangerous nature and their possession was prohibited. They were stored in the premises at the time of the occurrence.
It was held by the Supreme Court that the appellants who were licence holders for manufacturing explosives in the factory were liable to be convicted under sections 304A and 337, although there was no direct evidence of the immediate cause of the explosion. The manufacturers undoubtedly displayed a high degree of negligence by allowing or causing to be used explosives of sensitive compositions and substances in the manufacturing of fireworks, which must be the efficient cause of the explosion.
In yet another case,4 the accused, knowing that a pistol was loaded, was trying to unload it and while doing so, acted so negligently that the pistol went off and, as a result the complainant's son was killed. It was held that the accused was guilty under section 304A, I.P.C.
In a Bombay case5 the accused was out shooting with the deceased in the jungle. While separate from the deceased, the accused saw something moving in the jungle. Without waiting to see what it was, the accused fired and shot the deceased. It was held that the case fell within section 304, I.P.C.
We are citing cases to show the wide scope of section 304A.
1. Emp. v. Somua, 1909 ILR All 290.
2. Sukaroo Kobiraj v. Empress, 1872 ILR 14 Cal 566.
3. Bhalchandra v. State of Maharashtra, AIR 1968 SC 1319.
4. Motan Ram, (1930) 32 Cr 14. 463, referred to in Ratanlal The Law of Crimes, (22nd Edn.), p. 815.
5. Budhya, (1888) Unreported Cr C 398, referred to in Ratanlal The Law of Crimes, (22nd Edn.), p. 813.