Report No. 70
Acquisition of Property of Homicide
Section 7A (Proposed)
14.1. Effect of death on transfer.-
One aspect of public policy which is not dealt with expressly in the Act may now be discussed in view of its ethical interest and juristic importance. The precise question for consideration is this-can a person who has been guilty of the culpable homicide-(whether amounting to murder or not) of another person acquire, (other wise than by succession), an interest in property where the acquisition of such interest is, by the terms of a transfer, conditional on the death of the person who is the victim of the culpable homicide?
Acquisition of interest (otherwise than by death) conditional on death could be envisaged in several circumstances even apart from succession. Examples will be given later.1 For the present, let us consider a few theoretical and general aspects.
1. Para. 14.14, infra.
14.2. The principle Nullus commodurn capers potest de injuria sus propria (No man can take advantage of his own wrong1-2) is familiar to lawyers. It is a well-established general principle that a person who kills another is not entitled to enjoy any property which he would otherwise have acquired as a result of that death.3-4 We are now concerned with the application of that principle to the law of transfer.
1. Chadwick Testator's Bounty to his Slayer, (1914) 30 LQR 211.
2. Toohey Killing the Goose that Lays the Golden Eggs, (1958) 23 Australian, L.J. 14.
3. T.C. Youdan Acquisition of Property by Killing, 89 LQR 235.
4. Callaway (in re:), (1956) Ch 559.
"Equity does not demand that its suitors shall have led blameless lives."1 What bars the claim is not a general depravity, but one which has "an immediate and necessary relation to the equity sued for".2 We are now dealing with the question whether there is justification for applying this principle in the law of transfer.
1. Loghran v. Loughran, 292 US 216 (229) (1934), per Brandeis, J.
2. Dering v. Earl of Winchelsea, (1787) 1 Cox Eq. 318 (319, 320): 2 W & TLC 488 (489), per Eyre C.B.; Moody v. Cox, (1917) 2 Ch 71 (87): 34 TLR.
14.3. This is not a mere question of abuse of existing rights. The question is whether rights should be allowed to be acquired under a transfer where their acquisition offends the deepest moral sentiments of the community. No doubt, it is not possible to give effect in the legal system to every norm of ethics. Law presents itself as an external regulation of human conduct.1 Ethical theory is concerned with the question of the content of a man's own will, in whose heart there must be no opposition of being and seeming.2 Law is neither ethics nor religion, it is true. But the law is not safe when it is totally divorced from ethics.3 Such ethical mandates as are universally accepted, and as are immediately relevant to the subject, deserve consideration.
1. Rudolf Stammler Justice, p. 441.
2. Rudolf Stammler Justice, p. 441.
3. Dr. Nathniel Micklem Law and the Laws, (1952), p. 59.
14.4. Position in law of Succession.-
Let us first refer to a few branches of the law where the principle that a man shall not profit by killing has been given concrete legal recognition. In the law of Succession it is well recognised that it is a rule of public policy that a person shall not be allowed to benefit from his crime. If, therefore, A makes a will in favour of B, and B shoots A dead B is not allowed to claim the property to which he would otherwise be entitled under the will. Likewise, he is not entitled to claim under an intestacy in such circumstances.
In England, before the Forfeiture Act, 1870, the interest of a murderer was forfeited to the Crown, so that where a fellow was a beneficiary under the will, the murderer's interest was forfeited, by reason of this rules. The Forfeiture Act, 1870 abolished the common law as to the property of the felon and since then the basis of the rule has been altered. It was in 1892 and Fry, L.J. formulated the rule that1-
"It appears to me that no system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanour. In other words, the rule is expressed in terms that the law will not lend its aid to assist a criminal to recover. It left open the question whether the executors could nevertheless pay."
1. Cleaver v. Mutual Reserve Fund Life Association, (1892) 1 QB 147.
14.5. The Indian Succession Act does not contain any specific provision on the subject. But it should be noted that the Act does not embrace the whole field of intestate succession for persons of all communities. In this sense, it does not deal exhaustively with the law of succession. In any case, such Acts should be read1 as not intended to affect paramount questions of public policy.
1. Para. 14.7, infra.
14.6. Position in Hindu law.-
In regard to Hindus, this was the position1 in respect of Hindus, even before the passing of the Hindu Succession Act.
1. Kenchava v. Girimallappa, AIR 1924 PC 209.
14.7. It was held by the Privy Council1 even before the Act that the "High Court has rightly decided that the principles of equity, justice and good conscience exclude the murderer." The Privy Council also laid down that "statutes regulating heirship or descent, or giving force to wills should be read as not intended to affect paramount questions of public policy or depart from well settled principles of jurisprudence."
Amongst the persons disqualified to succeed in Hindu law were those criminally responsible for the death of the propositus.2 This position was not modified by the Hindu Inheritance (Removal of Disabilities) Act, 1928. It was reintegrated by the Hindu Succession Act, 1956. Section 25 of that Act expressly disqualifies a murderer.
1. Kenchaya v. Girimallappa, AIR 1924 PC 209 (211).
2. Chanda v. Chameli, AIR 1962 Punj 162, commented upon in AIR 1963 Journal 5 (6).
14.8. According to Hindu law, then, even before the passing of the Hindu Succession Act, no heirship to another can be claimed by or through a person who has been a privy to his murder. This rule is one of public policy. It has been given effect to by the Privy Council, relying on ancient texts.1
The Hindu Succession Act-The Hindu Succession Act now provides as follows2:
"25. Murderer disqualified.-A person who commits murder or abets the commission of murder, shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder."
1. Narada, 11,13, 31 cited in Mitakshara II. X. 3 relied upon in Kenchava v. Giri Mallappa, AIR 1924 PC 209.
2. Section 25, Hindu Succession Act, 1956.
14.9. The rule amongst Muslims is the same.1 The rule of law is that he who kills another cannot take a legacy from the deceased, in Hanafi law this provision is applied with great severity, and the manslayer is excluded whether the homicide is intentional or not. In Ithna "Ashari law, the more logical view is taken and only intentional homicide leads to exclusion, but the Fatimids have apparently adopted the Hanafi rule.2
Rule in England-The general rule3 in England is that a person may not recover a benefit resulting from his own crime4
As early as 18925 it was, in England, laid down that a murdered forfeits all benefits under the will of his victim.6 In 1914, this principle was extended from murder to man-slaughter.7 In regard to intestacy, it was decided in 1935 that the same rule of public policy applies.8
1. Tyabji Muslim Law, (1968), pp. 762-820, 865.
2. Fyzee Outlines of Muhammadan Law, (1974), citing Tyabji, 682; Wilson 478; Fitzgerald 170; Fat Law 446.
3. Halsbury's, 3rd Edn., Vol. 1, p. 10, para. 15.
4. (a) Boresford v. Royal Insurance Co. Ltd., (1936) 2 All ER 1052; revsd. CA (1937) 2 All ER 243; affd. HL (1933) 2 All ER 602; 1938 AC 586; 107 LJKB 464: 158 LT 459.
(b) Cleaver v. Mutual Reserve Fund Life Association, (1892) 1 QB 147;
(c) Estate of Crippen (in re:), (1911) Probate 108;
(d) Dixon v. Sutten Heath & Lea Green Colliery Ltd., (No. 2) (1930) 23 BWCC 135 (CA); Halsbury's, 2nd Edn., Vol. 34, p. 865(i).
5. Cleaver v. Mutual Association, (1892) 1 QB 147.
6. See Ames, Lectures on Legal History, p. 310.
7. Hall (in re:), 1914 Probate 1.
8. Sigsworth (in re:), 1935 Ch 89.