SUPREME COURT OF INDIA
SHEHAMMAL VS. HASAN KHANI RAWTHER
DATED : 02.08.2011
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Introduction:
Meeralava
Rawther died in 1986, leaving behind him surviving three sons and three
daughters, as his legal heirs. At the time of his death he possessed 1.70 acres
of land in Survey No.133/1B of Thodupuzha village, which he had acquired on the
basis of a partition effected in the family of deceased Meeralava Rawther in
1953 by virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava
Rawther and his family members, being Mohammedans, they are entitled to succeed
to the estate of the deceased in specific shares as tenants in common. Since
Meeralava Rawther had three sons and three daughters, the sons were entitled to
a 2/9th share in the estate of the deceased, while the daughters were each
entitled to a 1/9th share thereof.
Rawther died in 1986, leaving behind him surviving three sons and three
daughters, as his legal heirs. At the time of his death he possessed 1.70 acres
of land in Survey No.133/1B of Thodupuzha village, which he had acquired on the
basis of a partition effected in the family of deceased Meeralava Rawther in
1953 by virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava
Rawther and his family members, being Mohammedans, they are entitled to succeed
to the estate of the deceased in specific shares as tenants in common. Since
Meeralava Rawther had three sons and three daughters, the sons were entitled to
a 2/9th share in the estate of the deceased, while the daughters were each
entitled to a 1/9th share thereof.
Facts of the Case:
It is the
specific case of the parties that Meeralava Rawther helped all his children to
settle down in life. The youngest son, Hassan Khani Rawther, the Respondent
No.1, was a Government employee and was staying with him even after his
marriage, while all the other children moved out from the family house, either
at the time of marriage, or soon, thereafter. The case made out by the
Respondent No.1 is that when each of his children left the family house
Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby,
on the receipt of some consideration, each of them relinquished their
respective claim to the properties belonging to Meeralava Rawther. The
Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s
legal heirs who was not required by his father to execute such a deed.
specific case of the parties that Meeralava Rawther helped all his children to
settle down in life. The youngest son, Hassan Khani Rawther, the Respondent
No.1, was a Government employee and was staying with him even after his
marriage, while all the other children moved out from the family house, either
at the time of marriage, or soon, thereafter. The case made out by the
Respondent No.1 is that when each of his children left the family house
Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby,
on the receipt of some consideration, each of them relinquished their
respective claim to the properties belonging to Meeralava Rawther. The
Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s
legal heirs who was not required by his father to execute such a deed.
Observation of Court:
A family
arrangement would necessarily mean a decision arrived at jointly by the members
of a family and not between two individuals belonging to the family. The five
deeds of relinquishment executed by the five sons and daughters of Meeralava
Rawther constitute individual agreements entered into between Meeralava Rawther
and the expectant heirs. However, notwithstanding the above, as we have held
hereinbefore, the doctrine of estoppel is attracted so as to prevent a person
from receiving an advantage for giving up of his/her rights and yet claiming
the same right subsequently. In our view, being opposed to public policy, the
heir expectant would be estopped under the general law from claiming a share in
the property of the deceased, as was held in Gulam Abbas’s case (supra).
arrangement would necessarily mean a decision arrived at jointly by the members
of a family and not between two individuals belonging to the family. The five
deeds of relinquishment executed by the five sons and daughters of Meeralava
Rawther constitute individual agreements entered into between Meeralava Rawther
and the expectant heirs. However, notwithstanding the above, as we have held
hereinbefore, the doctrine of estoppel is attracted so as to prevent a person
from receiving an advantage for giving up of his/her rights and yet claiming
the same right subsequently. In our view, being opposed to public policy, the
heir expectant would be estopped under the general law from claiming a share in
the property of the deceased, as was held in Gulam Abbas’s case (supra).
Judgement:
The Special
Leave Petitions and the same are dismissed, but without any order as to costs.
Leave Petitions and the same are dismissed, but without any order as to costs.
—————————————————
SUPREME COURT OF INDIA
SHEHAMMAL VS. HASAN KHANI RAWTHER
DATED : 02.08.2011
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE
JURISDICTION
JURISDICTION
SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008
SHEHAMMAL …
PETITIONER
PETITIONER
Vs.
HASAN KHANI RAWTHER & ORS. … RESPONDENTS
WITH
LP(C)NOS.14303-14304 OF
2008
2008
JUDGEMENT ALTAMAS KABIR, J.
1. Special Leave Petition (Civil)
Nos.7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil)
Nos.14303-14304 of 2008 filed by one
Amina and others, both directed against the final judgment and order dated
18.10.2007 passed by the Kerala High Court in R.F.A.No.75 of 2004 (B) and
R.F.A.No.491 of 2006, have been taken up together for final disposal. The
parties to the aforesaid SLPs, except for the Respondent No.6, Hassankhan, are
siblings. While the petitioner in SLP(C)Nos.7421-7422 of 2008 is the daughter
of Late Meeralava Rawther, the Respondent No.1, Hassan Khani Rawther, and the
Respondent Nos.2 and 5 are the sons and the Respondent Nos.3 and 4 are the
daughters of the said Meeralava Rawther. The Respondent No.6, Hassankhan, is a
purchaser of the shares of the Respondent Nos.2 and 5, both heirs of Late
Meeralava Rawther. The remaining respondents are the legal heirs of Muhammed
Rawther, the second respondent before the High Court. The petitioner in
SLP(C)Nos.7421-7422 of 2008 is the plaintiff in O.S.No.169 of 1994 and the
third defendant in O.S.No.171 of 1992, filed by Hassan
Khani Rawther, is the Respondent No.1 in all the four SLPs.
Nos.7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil)
Nos.14303-14304 of 2008 filed by one
Amina and others, both directed against the final judgment and order dated
18.10.2007 passed by the Kerala High Court in R.F.A.No.75 of 2004 (B) and
R.F.A.No.491 of 2006, have been taken up together for final disposal. The
parties to the aforesaid SLPs, except for the Respondent No.6, Hassankhan, are
siblings. While the petitioner in SLP(C)Nos.7421-7422 of 2008 is the daughter
of Late Meeralava Rawther, the Respondent No.1, Hassan Khani Rawther, and the
Respondent Nos.2 and 5 are the sons and the Respondent Nos.3 and 4 are the
daughters of the said Meeralava Rawther. The Respondent No.6, Hassankhan, is a
purchaser of the shares of the Respondent Nos.2 and 5, both heirs of Late
Meeralava Rawther. The remaining respondents are the legal heirs of Muhammed
Rawther, the second respondent before the High Court. The petitioner in
SLP(C)Nos.7421-7422 of 2008 is the plaintiff in O.S.No.169 of 1994 and the
third defendant in O.S.No.171 of 1992, filed by Hassan
Khani Rawther, is the Respondent No.1 in all the four SLPs.
2. Meeralava Rawther died in 1986,
leaving behind him surviving three sons and three daughters, as his legal
heirs. At the time of his death he possessed 1.70 acres of land in Survey
No.133/1B of Thodupuzha village, which he had acquired on the basis of a
partition effected in the family of deceased Meeralava Rawther in 1953 by
virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther
and his family members, being Mohammedans, they are entitled to succeed to the
estate of the deceased in specific shares as tenants in common. Since Meeralava
Rawther had three sons and three daughters, the sons were entitled to a 2/9th
share in the estate of the deceased, while the daughters were each entitled to
a 1/9th share thereof.
leaving behind him surviving three sons and three daughters, as his legal
heirs. At the time of his death he possessed 1.70 acres of land in Survey
No.133/1B of Thodupuzha village, which he had acquired on the basis of a
partition effected in the family of deceased Meeralava Rawther in 1953 by
virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther
and his family members, being Mohammedans, they are entitled to succeed to the
estate of the deceased in specific shares as tenants in common. Since Meeralava
Rawther had three sons and three daughters, the sons were entitled to a 2/9th
share in the estate of the deceased, while the daughters were each entitled to
a 1/9th share thereof.
3. It is the specific case of the
parties that Meeralava Rawther helped all his children to settle down in life.
The youngest son, Hassan Khani Rawther, the
Respondent No.1, was a Government employee and was staying with him even after
his marriage, while all the other children moved out from the family house,
either at the time of marriage, or soon, thereafter. The case made out by the
Respondent No.1 is that when each of his children left the family house
Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby,
on the receipt of some consideration, each of them relinquished their
respective claim to the properties belonging to Meeralava Rawther. The
Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s
legal heirs who was not required by his father to execute such a deed.
parties that Meeralava Rawther helped all his children to settle down in life.
The youngest son, Hassan Khani Rawther, the
Respondent No.1, was a Government employee and was staying with him even after
his marriage, while all the other children moved out from the family house,
either at the time of marriage, or soon, thereafter. The case made out by the
Respondent No.1 is that when each of his children left the family house
Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby,
on the receipt of some consideration, each of them relinquished their
respective claim to the properties belonging to Meeralava Rawther. The
Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s
legal heirs who was not required by his father to execute such a deed.
4. Meeralava Rawther died intestate in
1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the
Respondent No.1, Hassan Khani Rawther filed O.S.No.171 of 1992 before the Court
of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and
injunction in respect of the said 1.70 acres of land,
basing his claim on an oral gift alleged to have been made in his favour by
Meeralava Rawther in 1982.
1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the
Respondent No.1, Hassan Khani Rawther filed O.S.No.171 of 1992 before the Court
of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and
injunction in respect of the said 1.70 acres of land,
basing his claim on an oral gift alleged to have been made in his favour by
Meeralava Rawther in 1982.
5. On 6th April, 1992, the Respondent
No.2, Muhammed Rawther, one of the brothers, filed O.S.No.90 of 1992 before the
Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan
Khani Rawther, in respect of the suit property. The said suit was subsequently
transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered
as O.S.No.168 of 1994.
No.2, Muhammed Rawther, one of the brothers, filed O.S.No.90 of 1992 before the
Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan
Khani Rawther, in respect of the suit property. The said suit was subsequently
transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered
as O.S.No.168 of 1994.
6. On the basis of her claim to a 1/9th
share in the estate of Late Meeralava Rawther the petitioner, Shehammal filed
O.S.No.126 of 1992 on 25th May, 1992, seeking partition of the plaint
properties comprising the same 1.70 acres of land in respect of which the other
two suits had been filed. The said suit was also subsequently transferred to
the Court of Subordinate Judge, Thodupuzha, and was renumbered as
O.S.No.169 of 1994 and was jointly taken
up for trial along with O.S.No.171 of 1992. By a common judgment dated
15.11.1996, the learned Trial Judge dismissed O.S.No.171 of 1992 filed by the
Respondent No.1, for want of evidence.
share in the estate of Late Meeralava Rawther the petitioner, Shehammal filed
O.S.No.126 of 1992 on 25th May, 1992, seeking partition of the plaint
properties comprising the same 1.70 acres of land in respect of which the other
two suits had been filed. The said suit was also subsequently transferred to
the Court of Subordinate Judge, Thodupuzha, and was renumbered as
O.S.No.169 of 1994 and was jointly taken
up for trial along with O.S.No.171 of 1992. By a common judgment dated
15.11.1996, the learned Trial Judge dismissed O.S.No.171 of 1992 filed by the
Respondent No.1, for want of evidence.
O.S.No.169 of 1994 filed by Shehammal
was decreed and in view of the findings recorded in O.S.No.169 of 1994, the
trial court dismissed O.S.No.168 of 1994 filed by Muhammed Rawther, the
Respondent No.2 herein. A subsequent application filed by the plaintiff in
O.S.No.171 of 1992 for restoration of the said suit and another application for
setting aside the decree in O.S.No.169 of 1994, were dismissed by the trial
court.
was decreed and in view of the findings recorded in O.S.No.169 of 1994, the
trial court dismissed O.S.No.168 of 1994 filed by Muhammed Rawther, the
Respondent No.2 herein. A subsequent application filed by the plaintiff in
O.S.No.171 of 1992 for restoration of the said suit and another application for
setting aside the decree in O.S.No.169 of 1994, were dismissed by the trial
court.
7. The Respondent No.1 herein, Hassan
Khani Rawther, moved the High Court by way of C.M.A.Nos.191 of 2000 and 247 of
2000 and the High Court by its judgment dated 17.1.2003 set aside the decree in
O.S.Nos.171 of 1992 and 169 of 1994 and directed the trial court to take back
O.S.Nos.171 of 1992 and 169 of 1994 to file and to dispose of the same on merits. On remand, the learned
Subordinate Judge dismissed O.S.No.171 of 1992, disbelieving the story of oral
gift propounded by the Respondent No.1. The matter was again taken to the High
Court against the order of the learned Subordinate Judge. The Respondent No.1
filed R.F.A.Nos.75 of 2004 and 491 of 2006 in the Kerala High Court and the
same were allowed by the learned Single Judge holding that even if the plaintiff
failed to prove the oral gift in his favour, he could not be non-suited, since
he alone was having the rights over the assets of Meeralava Rawther in view of
the various Deeds of Relinquishment executed by the other sons and daughters of
Meeralava Rawther.
Khani Rawther, moved the High Court by way of C.M.A.Nos.191 of 2000 and 247 of
2000 and the High Court by its judgment dated 17.1.2003 set aside the decree in
O.S.Nos.171 of 1992 and 169 of 1994 and directed the trial court to take back
O.S.Nos.171 of 1992 and 169 of 1994 to file and to dispose of the same on merits. On remand, the learned
Subordinate Judge dismissed O.S.No.171 of 1992, disbelieving the story of oral
gift propounded by the Respondent No.1. The matter was again taken to the High
Court against the order of the learned Subordinate Judge. The Respondent No.1
filed R.F.A.Nos.75 of 2004 and 491 of 2006 in the Kerala High Court and the
same were allowed by the learned Single Judge holding that even if the plaintiff
failed to prove the oral gift in his favour, he could not be non-suited, since
he alone was having the rights over the assets of Meeralava Rawther in view of
the various Deeds of Relinquishment executed by the other sons and daughters of
Meeralava Rawther.
8. Being aggrieved by the judgment of
reversal passed by the learned Single Judge of the High Court, the petitioners
herein in the four Special Leave Petitions have questioned the validity of the
said judgment.
reversal passed by the learned Single Judge of the High Court, the petitioners
herein in the four Special Leave Petitions have questioned the validity of the
said judgment.
9. Appearing for the Petitioners in both
the SLPs, Mr. M.T.
the SLPs, Mr. M.T.
George, learned Advocate, submitted that
the impugned judgment of the High Court was based on an erroneous understanding
of the law relating to relinquishment of right in a property by a Mohammedan.
It was submitted that the High Court had failed to truly understand the concept
of spes successionis which has been referred to in paragraph 54 of Mulla’s
“Principles of Mahomedan Law”, which categorically indicates that a
Muslim is not entitled in law to relinquish an expected share in a property.
the impugned judgment of the High Court was based on an erroneous understanding
of the law relating to relinquishment of right in a property by a Mohammedan.
It was submitted that the High Court had failed to truly understand the concept
of spes successionis which has been referred to in paragraph 54 of Mulla’s
“Principles of Mahomedan Law”, which categorically indicates that a
Muslim is not entitled in law to relinquish an expected share in a property.
Mr. George submitted that the said doctrine was based on the concept that the
Mohammedan Law did not contemplate inheritance by way of expectancy during the
life time of the owner and that inheritance opened to the legal heirs only
after the death of an individual when right to the property of the legal heirs
descended in specific shares. Accordingly, all the Deeds of Relinquishment
executed by the siblings, except for the Respondent No.1, were void and were
not capable of being acted upon. Accordingly, when succession
opened to the legal heirs of Meeralava Rawther on his death, each one of them
succeeded to a specified share in his estate.
Mohammedan Law did not contemplate inheritance by way of expectancy during the
life time of the owner and that inheritance opened to the legal heirs only
after the death of an individual when right to the property of the legal heirs
descended in specific shares. Accordingly, all the Deeds of Relinquishment
executed by the siblings, except for the Respondent No.1, were void and were
not capable of being acted upon. Accordingly, when succession
opened to the legal heirs of Meeralava Rawther on his death, each one of them
succeeded to a specified share in his estate.
10. It was also submitted that as a
result, the finding of the High Court in R.F.A.No.491 of 2006 that even if the
story of oral gift set up by the plaintiff was disbelieved, he would still be
entitled to succeed to the entire estate of the deceased, on account of the
Deeds of Relinquishment executed by the other legal heirs of Meeralava Rawther,
was erroneous and was liable to be set aside. Mr. George contended that the
High Court wrongly interpreted the decision of this Court in the case of Gulam
Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554]. In the said decision,
this Court held that the applicability of the Doctrine of Renunciation of an
expectant right depended upon the surrounding circumstances and the conduct of
the parties when such a renunciation/relinquishment was made.
result, the finding of the High Court in R.F.A.No.491 of 2006 that even if the
story of oral gift set up by the plaintiff was disbelieved, he would still be
entitled to succeed to the entire estate of the deceased, on account of the
Deeds of Relinquishment executed by the other legal heirs of Meeralava Rawther,
was erroneous and was liable to be set aside. Mr. George contended that the
High Court wrongly interpreted the decision of this Court in the case of Gulam
Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554]. In the said decision,
this Court held that the applicability of the Doctrine of Renunciation of an
expectant right depended upon the surrounding circumstances and the conduct of
the parties when such a renunciation/relinquishment was made.
It was further
held that if the expectant heir received consideration for renouncing his
expectant share in the property and conducted himself in a manner so as to
mislead the owner of the property from disposing of the same during his life
time, the expectant heir could be debarred from setting up his right to what he
was entitled. Mr. George submitted that the High Court overlooked the fact that
this Court had held that mere execution of a document was not sufficient to
prevent the legal heirs from claiming their respective shares in the parental
property.
held that if the expectant heir received consideration for renouncing his
expectant share in the property and conducted himself in a manner so as to
mislead the owner of the property from disposing of the same during his life
time, the expectant heir could be debarred from setting up his right to what he
was entitled. Mr. George submitted that the High Court overlooked the fact that
this Court had held that mere execution of a document was not sufficient to
prevent the legal heirs from claiming their respective shares in the parental
property.
11. Mr. George submitted that apart form
the above, the High Court allowed itself to be misled into accepting a
“family arrangement” when such a contingency did not arise. The
transactions involving the separate Deeds of Relinquishment executed by each of
the heirs of Meeralava Rawther, constituted an individual act and could not be
construed to be a family arrangement. Mr. George submitted that even if the
story made out on behalf of the Respondent No.1, that Meeralava Rawther made
each of his children execute Deeds of Relinquishment on their leaving the
family house, is accepted, the same cannot by any stretch of imagination be
said to be a family arrangement which had been accepted by all the legal heirs
of Meeralava Rawther. Thus, misled into accepting a concept of “family
arrangement”, the High Court erroneously relied on the decision of the
Allahabad High Court in Latafat Hussain Vs. Bidayat Hussain [AIR 1936 All.
the above, the High Court allowed itself to be misled into accepting a
“family arrangement” when such a contingency did not arise. The
transactions involving the separate Deeds of Relinquishment executed by each of
the heirs of Meeralava Rawther, constituted an individual act and could not be
construed to be a family arrangement. Mr. George submitted that even if the
story made out on behalf of the Respondent No.1, that Meeralava Rawther made
each of his children execute Deeds of Relinquishment on their leaving the
family house, is accepted, the same cannot by any stretch of imagination be
said to be a family arrangement which had been accepted by all the legal heirs
of Meeralava Rawther. Thus, misled into accepting a concept of “family
arrangement”, the High Court erroneously relied on the decision of the
Allahabad High Court in Latafat Hussain Vs. Bidayat Hussain [AIR 1936 All.
573], Kochunni Kochu Vs. Kunju Pillai
(1956 Trav – Co 217, Thayyullathil Kunhikannan Vs Thayyullathil Kalliani And
Ors.
(1956 Trav – Co 217, Thayyullathil Kunhikannan Vs Thayyullathil Kalliani And
Ors.
[AIR 1990 Kerala 226] and Hameed Vs
Jameela (2004 (1) KLT
Jameela (2004 (1) KLT
586), where it had been uniformly held
that when there is a family arrangement binding on the parties, it would
operate as estoppel by preventing the parties from resiling from the same or
trying to revoke it after having taken advantage of such arrangement. Mr.
George submitted that having regard to the doctrine of spes successionis, the
concept of estoppel could not be applied to Muslims on account of the fact that
the law of inheritance applicable to Muslims is derived from the Quran, which specifies specific
shares to those entitled to inheritance and the execution of a document is not
sufficient to bar such inheritance.
that when there is a family arrangement binding on the parties, it would
operate as estoppel by preventing the parties from resiling from the same or
trying to revoke it after having taken advantage of such arrangement. Mr.
George submitted that having regard to the doctrine of spes successionis, the
concept of estoppel could not be applied to Muslims on account of the fact that
the law of inheritance applicable to Muslims is derived from the Quran, which specifies specific
shares to those entitled to inheritance and the execution of a document is not
sufficient to bar such inheritance.
Accordingly, renunciation by an expectant
heir in the life time of his ancestor is not valid or enforceable against him
after the vesting of the inheritance. Mr. George reiterated that the Deeds of
Relinquishment between A2 to A6 could not be treated as a “family
arrangement” since all the members of the family were not parties to the
said Deeds and his position not having altered in any way, the Respondent No.1
is not entitled to claim exclusion of the other heirs of Late Meeralava Rawther
from his estate.
heir in the life time of his ancestor is not valid or enforceable against him
after the vesting of the inheritance. Mr. George reiterated that the Deeds of
Relinquishment between A2 to A6 could not be treated as a “family
arrangement” since all the members of the family were not parties to the
said Deeds and his position not having altered in any way, the Respondent No.1
is not entitled to claim exclusion of the other heirs of Late Meeralava Rawther
from his estate.
12. In this regard, Mr. George also drew
our attention to Section 6 of the Transfer of Property Act, 1882, where the
concept of spes successionis has been incorporated. It was pointed out that
Clause (a) of Section 6 is in pari materia with the doctrine of spes
successionis, as incorporated in paragraph 54 of Mulla’s “Principles of
Mahomedan Law” and provides that the chance of a person
succeeding to an estate cannot be transferred.
our attention to Section 6 of the Transfer of Property Act, 1882, where the
concept of spes successionis has been incorporated. It was pointed out that
Clause (a) of Section 6 is in pari materia with the doctrine of spes
successionis, as incorporated in paragraph 54 of Mulla’s “Principles of
Mahomedan Law” and provides that the chance of a person
succeeding to an estate cannot be transferred.
13. In view of his aforesaid
submissions, Mr. George submitted that the impugned judgment and decree of the
High Court was liable to be set aside and that of the learned Subordinate Judge
was liable to be restored.
submissions, Mr. George submitted that the impugned judgment and decree of the
High Court was liable to be set aside and that of the learned Subordinate Judge
was liable to be restored.
14. Mr. V. Giri, learned Advocate, who
appeared for the Respondent No.1, urged that in view of the three-Judge Bench
decision in Gulam Abbas’s case (supra), it was not open to the Petitioner to
claim that the Doctrine of Estoppel would not be applicable in the facts of
this case. Mr. Giri submitted that the view expressed in Gulam Abbas’s case
(supra) had earlier been expressed by other High Courts to which reference has been
made hereinbefore. He urged that all the Courts had taken a consistent view
that having relinquished his right to further inheritance, a legal heir could
not claim a share in the property once inheritance opened on the death of the
owner of the property.
appeared for the Respondent No.1, urged that in view of the three-Judge Bench
decision in Gulam Abbas’s case (supra), it was not open to the Petitioner to
claim that the Doctrine of Estoppel would not be applicable in the facts of
this case. Mr. Giri submitted that the view expressed in Gulam Abbas’s case
(supra) had earlier been expressed by other High Courts to which reference has been
made hereinbefore. He urged that all the Courts had taken a consistent view
that having relinquished his right to further inheritance, a legal heir could
not claim a share in the property once inheritance opened on the death of the
owner of the property.
15. Mr. Giri contended that any decision
to the contrary would offend the provisions of Section 23 of the Indian
Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the
principles of Mahomedan law in relation to the law as incorporated in the
Transfer of Property Act and the Indian Contract Act, had been considered in
great detail by the three-Judge Bench in Gulam Abbas’s case (supra). Learned
counsel pointed out that on a conjoint reading of Section 6 of the Transfer of
Property Act and paragraph 54 of Mulla’s “Principles of Mahomedan
Law” it would be quite evident that what was sought to be protected was
the right of a Mohammedan to the chance of future succession to an estate.
to the contrary would offend the provisions of Section 23 of the Indian
Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the
principles of Mahomedan law in relation to the law as incorporated in the
Transfer of Property Act and the Indian Contract Act, had been considered in
great detail by the three-Judge Bench in Gulam Abbas’s case (supra). Learned
counsel pointed out that on a conjoint reading of Section 6 of the Transfer of
Property Act and paragraph 54 of Mulla’s “Principles of Mahomedan
Law” it would be quite evident that what was sought to be protected was
the right of a Mohammedan to the chance of future succession to an estate.
Learned counsel submitted that neither of the two provisions takes into
consideration a situation where a right of spes successionis is transferred for
a consideration. Mr. Giri submitted that in Gulam Abbas’s case (supra) the said
question was one of the important questions which fell for consideration, since
it had a direct bearing on the question in
the light of Section 23 of the Indian Contract Act, 1872. Mr. Giri submitted
that the bar to a transfer of a right of spes successionis is not an absolute
bar and would be dependent on circumstances such as receipt of consideration or
compensation for relinquishment of such expectant right in future. Mr. Giri
urged that the Special Leave Petitions were wholly misconceived and were liable
to be dismissed.
consideration a situation where a right of spes successionis is transferred for
a consideration. Mr. Giri submitted that in Gulam Abbas’s case (supra) the said
question was one of the important questions which fell for consideration, since
it had a direct bearing on the question in
the light of Section 23 of the Indian Contract Act, 1872. Mr. Giri submitted
that the bar to a transfer of a right of spes successionis is not an absolute
bar and would be dependent on circumstances such as receipt of consideration or
compensation for relinquishment of such expectant right in future. Mr. Giri
urged that the Special Leave Petitions were wholly misconceived and were liable
to be dismissed.
16. From the submissions made on behalf
of the respective parties and the facts of the case, three questions of
importance emerge for decision, namely:-
of the respective parties and the facts of the case, three questions of
importance emerge for decision, namely:-
(i) Whether in view of the doctrine of
spes successionis, as embodied in Section 6 of the Transfer of Property Act,
1882, and in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, a
Deed of Relinquishment executed by an expectant heir could operate as estoppel
to a claim that may be set up by
the Executor of such Deed after
inheritance opens on the death of the owner of the property?
spes successionis, as embodied in Section 6 of the Transfer of Property Act,
1882, and in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, a
Deed of Relinquishment executed by an expectant heir could operate as estoppel
to a claim that may be set up by
the Executor of such Deed after
inheritance opens on the death of the owner of the property?
(ii) Whether on execution of a Deed of
Relinquishment after having received remuneration for such future share, the
expectant heir could be estopped from claiming a share in the inheritance?
Relinquishment after having received remuneration for such future share, the
expectant heir could be estopped from claiming a share in the inheritance?
(iii) Can a Mohammedan by means of a
Family Settlement relinquish his right of spes successionis when he had still
not acquired a right in the property?
Family Settlement relinquish his right of spes successionis when he had still
not acquired a right in the property?
17. Chapter VI of Mulla’s
“Principles of Mahomedan Law”
“Principles of Mahomedan Law”
deals with the general rules of
inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter
relates to the concept of transfer of spes successionis which has also been
termed as “renunciation of a chance of succession”. The said
paragraph provides that the chance of a Mohammedan heir-apparent succeeding to
an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the
Transfer of Property Act and the relevant portion thereof, namely, clause (a)
is extracted below :-
inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter
relates to the concept of transfer of spes successionis which has also been
termed as “renunciation of a chance of succession”. The said
paragraph provides that the chance of a Mohammedan heir-apparent succeeding to
an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the
Transfer of Property Act and the relevant portion thereof, namely, clause (a)
is extracted below :-
“6. What may be transferred.-
Property of any kind may be transferred, except as otherwise provided by this
Act or by any other law for the time being in force.
Property of any kind may be transferred, except as otherwise provided by this
Act or by any other law for the time being in force.
(a) The chance of an heir-apparent
succeeding to an estate, the chance of a relation obtaining a legacy on the
death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.”
succeeding to an estate, the chance of a relation obtaining a legacy on the
death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.”
The provisions of Section 6(a) have to
be read along with Section 2 of the Act, which provides for repeal of Acts and
saving of certain enactments, incidents, rights, liabilities etc. It
specifically provides that nothing in Chapter II, in which Section 6 finds
place, shall be deemed to affect any rule of Mohammedan Law.
be read along with Section 2 of the Act, which provides for repeal of Acts and
saving of certain enactments, incidents, rights, liabilities etc. It
specifically provides that nothing in Chapter II, in which Section 6 finds
place, shall be deemed to affect any rule of Mohammedan Law.
18. Inspite of the aforesaid provisions,
both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid
provisions are capable of being removed in certain situations. Two examples in
this regard are –
both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid
provisions are capable of being removed in certain situations. Two examples in
this regard are –
(i) When an expectant heir willfully
does something which has the effect of attracting the provisions of Section 115
of the Evidence Act, is he estopped from claiming the benefit of the doctrine
of spes successionis, as provided for under Section 6(a) of the Transfer of
Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph
54 of Mulla’s “Principles of Mahomedan Law”?
does something which has the effect of attracting the provisions of Section 115
of the Evidence Act, is he estopped from claiming the benefit of the doctrine
of spes successionis, as provided for under Section 6(a) of the Transfer of
Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph
54 of Mulla’s “Principles of Mahomedan Law”?
(ii) When a Mohammedan becomes a party
to a family arrangement, does it also entail that he gives up his right of spes
successionis.
to a family arrangement, does it also entail that he gives up his right of spes
successionis.
The answer to the said two propositions
is also the answer to the questions formulated hereinbefore in paragraph16.
is also the answer to the questions formulated hereinbefore in paragraph16.
19. The Mohammedan Law enjoins in clear
and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to
an estate cannot be the subject of a valid transfer or release. Section 6(a) of
the Transfer of Property Act was enacted in deference to the customary law and
law of inheritance prevailing among Mohammedans.
and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to
an estate cannot be the subject of a valid transfer or release. Section 6(a) of
the Transfer of Property Act was enacted in deference to the customary law and
law of inheritance prevailing among Mohammedans.
20. As opposed to the above, are the
general principles of estoppel as contained in Section 115 of the Evidence Act
and the doctrine of relinquishment in respect of a future share in property.
Both the said principles contemplated a situation where an expectant heir
conducts himself and/or performs certain acts which makes the two aforesaid
principles applicable inspite of the clear concept of relinquishment as far as
Mohammedan Law is concerned, as incorporated in Section 54 of Mulla’s
“Principles of Mahomedan Law”. Great reliance has been placed by both
the parties on the decision in Gulam Abbas’s case (supra).
general principles of estoppel as contained in Section 115 of the Evidence Act
and the doctrine of relinquishment in respect of a future share in property.
Both the said principles contemplated a situation where an expectant heir
conducts himself and/or performs certain acts which makes the two aforesaid
principles applicable inspite of the clear concept of relinquishment as far as
Mohammedan Law is concerned, as incorporated in Section 54 of Mulla’s
“Principles of Mahomedan Law”. Great reliance has been placed by both
the parties on the decision in Gulam Abbas’s case (supra).
While dealing with a similar situation,
this Court watered down the concept that the chance of a Mohammedan heir
apparent succeeding to an estate cannot be the subject of a valid transfer on
lease and held that renunciation of an expectancy in respect of a future share
in a property in a case where the concerned party himself chose to depart from
the earlier views, was not only possible, but legally valid.
this Court watered down the concept that the chance of a Mohammedan heir
apparent succeeding to an estate cannot be the subject of a valid transfer on
lease and held that renunciation of an expectancy in respect of a future share
in a property in a case where the concerned party himself chose to depart from
the earlier views, was not only possible, but legally valid.
Referring to various authorities,
including Ameer Ali’s “Mohammedan Law”, this Court observed that
“renunciation implies the yielding up of a right already vested”. It
was observed in the facts of that case that during the lifetime of the mother,
the daughters had no right of inheritance.
including Ameer Ali’s “Mohammedan Law”, this Court observed that
“renunciation implies the yielding up of a right already vested”. It
was observed in the facts of that case that during the lifetime of the mother,
the daughters had no right of inheritance.
Citing the decision in the case of Mt.
Khannum Jan vs. Mt. Jan Bibi [(1827) 4 SDA 210] it was held that renunciation
implies the yielding up of a right already vested.
Khannum Jan vs. Mt. Jan Bibi [(1827) 4 SDA 210] it was held that renunciation
implies the yielding up of a right already vested.
Accordingly, renunciation during the
mother’s lifetime of the daughters’ shares would be null and void on the ground
that an inchoate right is not capable of being transferred
as such right was yet to crystallise.
This Court also held that “under the Muslim Law an expectant heir may,
nevertheless, be part of a course of conduct which may create an estoppel
against claiming the right at a time when the right of inheritance has
accrued”. It was observed by the learned Judges that the Contract Act and
the Evidence Act would not strictly apply since they did not involve questions
arising out of Mohammedan Law. This Court accordingly held that the
renunciation of a supposed right, based upon an expectancy, could not, by any
test be considered “prohibited”.
mother’s lifetime of the daughters’ shares would be null and void on the ground
that an inchoate right is not capable of being transferred
as such right was yet to crystallise.
This Court also held that “under the Muslim Law an expectant heir may,
nevertheless, be part of a course of conduct which may create an estoppel
against claiming the right at a time when the right of inheritance has
accrued”. It was observed by the learned Judges that the Contract Act and
the Evidence Act would not strictly apply since they did not involve questions
arising out of Mohammedan Law. This Court accordingly held that the
renunciation of a supposed right, based upon an expectancy, could not, by any
test be considered “prohibited”.
21. This Court ultimately held that the
binding force of the renunciation of a supposed right, would depend upon the
attendant circumstances and the whole course of conduct of which it formed a
part. In other words, the principle of an equitable estoppel far from being
opposed to any principle of Mohammedan Law, is really in complete harmony with
it.
binding force of the renunciation of a supposed right, would depend upon the
attendant circumstances and the whole course of conduct of which it formed a
part. In other words, the principle of an equitable estoppel far from being
opposed to any principle of Mohammedan Law, is really in complete harmony with
it.
22. On the question of family
arrangement, this Court observed that though arrangements arrived at in order
to avoid future disputes in the family may not technically be a settlement, a
broad concept of a family settlement could not be the answer to the doctrine of
spes successionis.
arrangement, this Court observed that though arrangements arrived at in order
to avoid future disputes in the family may not technically be a settlement, a
broad concept of a family settlement could not be the answer to the doctrine of
spes successionis.
23. There is little doubt that
ordinarily there cannot be a transfer of spes successionis, but in the
exceptions pointed out by this Court in Gulam Abbas’s case (supra), the same
can be avoided either by the execution of a family settlement or by accepting
consideration for a future share.
ordinarily there cannot be a transfer of spes successionis, but in the
exceptions pointed out by this Court in Gulam Abbas’s case (supra), the same
can be avoided either by the execution of a family settlement or by accepting
consideration for a future share.
It could then operate as estoppel
against the expectant heir to claim any share in the estate of the deceased on
account of the doctrine of spes successionis. While dealing with the various
decisions on the subject, which all seem to support the view taken by the
learned Judges, reference was made to the decision of Chief Justice Suleman of
the Allahabad High Court in the case of Latafat Hussain Vs. Hidayat Hussain
[AIR 1936 All 573], where the question of arrangement between the husband and wife in the
nature of a family settlement, which was binding on the parties, was held to be
correct in view of the fact that a presumption would have to be drawn that if
such family arrangement had not been made, the husband could not have executed
a deed of Wakf if the wife had not relinquished her claim to inheritance.
against the expectant heir to claim any share in the estate of the deceased on
account of the doctrine of spes successionis. While dealing with the various
decisions on the subject, which all seem to support the view taken by the
learned Judges, reference was made to the decision of Chief Justice Suleman of
the Allahabad High Court in the case of Latafat Hussain Vs. Hidayat Hussain
[AIR 1936 All 573], where the question of arrangement between the husband and wife in the
nature of a family settlement, which was binding on the parties, was held to be
correct in view of the fact that a presumption would have to be drawn that if
such family arrangement had not been made, the husband could not have executed
a deed of Wakf if the wife had not relinquished her claim to inheritance.
It is
true that in the case of Mt. Khannum Jan (supra), it had been held by this
Court that renunciation implied the yielding up of a right already vested or
desisting from prosecuting a claim maintainable against another, and such
renunciation during the lifetime of the mother of the shares of the daughters
was null and void since it entailed the giving up of something which had not
yet come into existence.
true that in the case of Mt. Khannum Jan (supra), it had been held by this
Court that renunciation implied the yielding up of a right already vested or
desisting from prosecuting a claim maintainable against another, and such
renunciation during the lifetime of the mother of the shares of the daughters
was null and void since it entailed the giving up of something which had not
yet come into existence.
24. The High Court after considering the
aforesaid views of the different jurists and the decision in connection with
the doctrine of relinquishment came to a finding that even if the provisions of
the doctrine of spes successionis were to apply, by their very conduct the
Petitioners were estopped from claiming the benefit of the said doctrine. In
this context, we may refer to yet another principle of Mohammedan Law which is
contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of
Mulla’s “Principles of Mahomedan Law” embodies the concept of the
limit of testamentary power by a Mohammedan.
aforesaid views of the different jurists and the decision in connection with
the doctrine of relinquishment came to a finding that even if the provisions of
the doctrine of spes successionis were to apply, by their very conduct the
Petitioners were estopped from claiming the benefit of the said doctrine. In
this context, we may refer to yet another principle of Mohammedan Law which is
contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of
Mulla’s “Principles of Mahomedan Law” embodies the concept of the
limit of testamentary power by a Mohammedan.
It records that a Mohammedan
cannot by Will dispose of more than a third of the surplus of his estate after payment
of funeral expenses and debts. Bequests in excess of one-third cannot take
effect unless the heirs consent thereto after the death of the testator. The
said principle of testamentary disposition of property has been the subject
matter of various decisions rendered by this Court from time to time and it has
been consistently stated and reaffirmed that a testamentary disposition by a
Mohammedan is binding upon the heirs if the heirs consent to the disposition of
the entire property and such consent could either be express or implied.
cannot by Will dispose of more than a third of the surplus of his estate after payment
of funeral expenses and debts. Bequests in excess of one-third cannot take
effect unless the heirs consent thereto after the death of the testator. The
said principle of testamentary disposition of property has been the subject
matter of various decisions rendered by this Court from time to time and it has
been consistently stated and reaffirmed that a testamentary disposition by a
Mohammedan is binding upon the heirs if the heirs consent to the disposition of
the entire property and such consent could either be express or implied.
Thus, a Mohammedan may also
make a disposition of his entire property if all the heirs signified their
consent to the same. In other words, the general principle that a Mohammedan
cannot by Will dispose of more than a third of his estate after payment of
funeral expenses and debts is capable of being avoided by the consent of all
the heirs.
make a disposition of his entire property if all the heirs signified their
consent to the same. In other words, the general principle that a Mohammedan
cannot by Will dispose of more than a third of his estate after payment of
funeral expenses and debts is capable of being avoided by the consent of all
the heirs.
In effect, the same also amounts to a
right of relinquishment of future inheritance which is on the one hand
forbidden and on the other accepted in the case of testamentary disposition.
Having accepted the consideration for having relinquished a future claim or
share in the estate of the deceased, it would be against public policy if such
a claimant be allowed the benefit of the doctrine of spes successionis. In such
cases, we have no doubt in our mind that the principle of estoppel would be
attracted.
right of relinquishment of future inheritance which is on the one hand
forbidden and on the other accepted in the case of testamentary disposition.
Having accepted the consideration for having relinquished a future claim or
share in the estate of the deceased, it would be against public policy if such
a claimant be allowed the benefit of the doctrine of spes successionis. In such
cases, we have no doubt in our mind that the principle of estoppel would be
attracted.
25. We are, however, not inclined to
accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A
family arrangement would necessarily mean a decision arrived at jointly by the
members of a family and not between two individuals belonging to the family.
The five deeds of relinquishment executed by the five sons and daughters of
Meeralava Rawther constitute individual agreements entered into between
Meeralava Rawther and the expectant heirs. However, notwithstanding the above,
as we have held hereinbefore, the doctrine of estoppel is attracted so as to
prevent a person from receiving an advantage for giving up of his/her rights
and yet claiming the same right subsequently. In our view, being opposed to
public policy, the heir expectant would be estopped under the general law from
claiming a share in the property of the deceased, as was held in Gulam Abbas’s
case (supra).
accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A
family arrangement would necessarily mean a decision arrived at jointly by the
members of a family and not between two individuals belonging to the family.
The five deeds of relinquishment executed by the five sons and daughters of
Meeralava Rawther constitute individual agreements entered into between
Meeralava Rawther and the expectant heirs. However, notwithstanding the above,
as we have held hereinbefore, the doctrine of estoppel is attracted so as to
prevent a person from receiving an advantage for giving up of his/her rights
and yet claiming the same right subsequently. In our view, being opposed to
public policy, the heir expectant would be estopped under the general law from
claiming a share in the property of the deceased, as was held in Gulam Abbas’s
case (supra).
26. We are not, therefore, inclined to
entertain the Special Leave Petitions and the same are accordingly dismissed,
but without any order as to costs.
entertain the Special Leave Petitions and the same are accordingly dismissed,
but without any order as to costs.
……………………………………………………J.
(ALTAMAS KABIR) ……………………………………………………J.
(CYRIAC JOSEPH)
……………………………………………………J.
……………………………………………………J.
(SURINDER SINGH NIJJAR) New Delhi Dated :
02.08.2011
02.08.2011