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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008
SHEHAMMAL ... PETITIONER
Vs.
HASAN KHANI RAWTHER & ORS. ... RESPONDENTS
WITH
SLP(C)NOS.14303-14304 OF 2008
J U D G M E N T
ALTAMAS KABIR, J.
1. Special Leave Petition (Civil) Nos.7421-7422 of 2008
filed by one Shehammal and Special Leave Petition (Civil)
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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
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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.
3. It is the specific case of the parties that Meeralava
Rawther helped all his children to settle down in life. The
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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
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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.
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
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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.
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
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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.
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9. Appearing for the Petitioners in both 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. 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
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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. It was
further held that if the expectant heir received
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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
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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.
[AIR 1990 Kerala 226] and Hameed Vs 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
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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.
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
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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.
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.
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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. 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
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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:-
(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
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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?
(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?
17. Chapter VI of Mulla’s “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
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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.
(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.”
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.
18. Inspite of the aforesaid provisions, both of the general
law and the personal law, the Courts have held that the
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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”?
(ii) When a Mohammedan becomes a party 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 paragraph
16.
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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.
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).
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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.
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.
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.
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
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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.
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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.
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.
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
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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.
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
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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
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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.
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.
25. We are, however, not inclined to accept that the
methodology resorted to by Meeralava Rawther can strictly be
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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).
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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.
……………………………………………………J.
(ALTAMAS KABIR)
……………………………………………………J.
(CYRIAC JOSEPH)
……………………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: 02.08.2011
