{"id":59964,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shehammal-vs-hasan-khani-rawther-ors-on-2-august-2011"},"modified":"2017-06-27T15:25:54","modified_gmt":"2017-06-27T09:55:54","slug":"shehammal-vs-hasan-khani-rawther-ors-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shehammal-vs-hasan-khani-rawther-ors-on-2-august-2011","title":{"rendered":"Shehammal vs Hasan Khani Rawther & Ors on 2 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shehammal vs Hasan Khani Rawther & Ors on 2 August, 2011<\/div>\n
Author: A Kabir<\/div>\n
Bench: Altamas Kabir, Cyriac Joseph, Surinder Singh Nijjar<\/div>\n
                                                                                  1\n\n\n\n\n\n                                                  REPORTABLE\n\n\n\n\n\n                      IN THE SUPREME COURT OF INDIA\n\n\n\n                      CIVIL APPELLATE JURISDICTION\n\n\n\n\n\n        SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008\n\n\n\n\n\nSHEHAMMAL                                          ... PETITIONER\n\n\n\n\n\n          Vs.\n\n\n\nHASAN KHANI RAWTHER & ORS.                         ... RESPONDENTS\n\n\n\n\n\n                                  WITH \n\n\n\n                      SLP(C)NOS.14303-14304 OF 2008\n\n\n\n\n\n                          J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR, J.\n<\/p>\n
1.    Special   Leave   Petition   (Civil)   Nos.7421-7422   of   2008 <\/p>\n
filed   by   one   Shehammal   and   Special   Leave   Petition   (Civil) <\/p>\n
                                                                           2<\/span><\/p>\n
Nos.14303-14304   of   2008   filed   by   one   Amina   and   others,   both <\/p>\n
directed   against   the   final   judgment   and   order   dated <\/p>\n
18.10.2007 passed by the Kerala High Court in R.F.A.No.75 of <\/p>\n
2004   (B)   and   R.F.A.No.491   of   2006,   have   been   taken   up <\/p>\n
together   for   final   disposal.     The   parties   to   the   aforesaid <\/p>\n
SLPs,   except   for   the   Respondent   No.6,   Hassankhan,   are <\/p>\n
siblings.   While   the   petitioner   in   SLP(C)Nos.7421-7422   of <\/p>\n
2008   is   the   daughter   of   Late   Meeralava   Rawther,   the <\/p>\n
Respondent   No.1,   Hassan   Khani   Rawther,   and   the   Respondent <\/p>\n
Nos.2 and 5 are the sons and the Respondent Nos.3 and 4 are <\/p>\n
the daughters of the said Meeralava Rawther.   The Respondent <\/p>\n
No.6,   Hassankhan,   is   a   purchaser   of   the   shares   of   the <\/p>\n
Respondent   Nos.2   and   5,   both   heirs   of   Late   Meeralava <\/p>\n
Rawther.     The   remaining   respondents   are   the   legal   heirs   of <\/p>\n
Muhammed   Rawther,   the   second   respondent   before   the   High <\/p>\n
Court.   The petitioner in SLP(C)Nos.7421-7422 of 2008 is the <\/p>\n
plaintiff   in   O.S.No.169   of   1994   and   the   third   defendant   in <\/p>\n
                                                                           3<\/span><\/p>\n
O.S.No.171   of   1992,   filed   by   Hassan   Khani   Rawther,   is   the <\/p>\n
Respondent No.1 in all the four SLPs.\n<\/p>\n
2.    Meeralava   Rawther   died   in   1986,   leaving   behind   him <\/p>\n
surviving   three   sons   and   three   daughters,   as   his   legal <\/p>\n
heirs.   At the time of his death he possessed 1.70 acres of <\/p>\n
land in Survey No.133\/1B of Thodupuzha village, which he had <\/p>\n
acquired   on  the   basis  of   a  partition   effected  in   the  family <\/p>\n
of   deceased   Meeralava   Rawther   in   1953   by   virtue   of   Deed <\/p>\n
No.4124   of   Thodupuzha,   Sub-Registrars   Office.     Meeralava <\/p>\n
Rawther   and   his   family   members,   being   Mohammedans,   they   are <\/p>\n
entitled   to   succeed   to   the   estate   of   the   deceased   in <\/p>\n
specific   shares   as   tenants   in   common.     Since   Meeralava <\/p>\n
Rawther   had   three   sons   and   three   daughters,   the   sons   were <\/p>\n
entitled   to   a   2\/9th  share   in   the   estate   of   the   deceased, <\/p>\n
while   the   daughters   were   each   entitled   to   a   1\/9th  share <\/p>\n
thereof.\n<\/p>\n
3.    It   is   the   specific   case   of   the   parties   that   Meeralava <\/p>\n
Rawther   helped  all   his  children   to  settle   down  in   life.  The <\/p>\n
                                                                                               4<\/span><\/p>\n
youngest son, Hassan Khani Rawther, the Respondent No.1, was <\/p>\n
a   Government   employee   and   was   staying   with   him   even   after <\/p>\n
his   marriage,   while   all   the   other   children   moved   out   from <\/p>\n
the   family   house,   either   at   the   time   of   marriage,   or   soon, <\/p>\n
thereafter.     The   case   made   out   by   the   Respondent   No.1   is <\/p>\n
that   when   each   of   his   children   left   the   family   house <\/p>\n
Meeralava   Rawther   used   to   get   them   to   execute   Deeds   of <\/p>\n
Relinquishment,          whereby,         on         the         receipt         of         some <\/p>\n
consideration,   each   of   them   relinquished   their   respective <\/p>\n
claim to the properties belonging to Meeralava Rawther.   The <\/p>\n
Respondent   No.1,   Hassan   Khani   Rawther,   was   the   only   one   of <\/p>\n
Meeralava   Rawther’s   legal   heirs   who   was   not   required   by   his <\/p>\n
father to execute such a deed.\n<\/p>\n
4.    Meeralava   Rawther   died   intestate   in   1986   leaving   1.70 <\/p>\n
acres   of   land   as   his   estate.     On   31st  March,   1992,   the <\/p>\n
Respondent   No.1,   Hassan   Khani   Rawther   filed   O.S.No.171   of <\/p>\n
1992   before   the   Court   of   Subordinate   Judge,   Thodupuzha, <\/p>\n
seeking   declaration   of   title,   possession   and   injunction   in <\/p>\n
                                                                           5<\/span><\/p>\n
respect of the said 1.70 acres of land, basing his claim on <\/p>\n
an   oral   gift   alleged   to   have   been   made   in   his   favour   by <\/p>\n
Meeralava Rawther in 1982.\n<\/p>\n
5.    On   6th     April,   1992,   the   Respondent   No.2,   Muhammed <\/p>\n
Rawther, one of the brothers, filed O.S.No.90 of 1992 before <\/p>\n
the   Court   of   Munsif,   Thodupuzha,   praying   for   injunction <\/p>\n
against his brother, Hassan Khani Rawther, in respect of the <\/p>\n
suit   property.     The   said   suit   was   subsequently   transferred <\/p>\n
to   the   Court   of   Subordinate   Judge,   Thodupuzha,   and   was <\/p>\n
renumbered as O.S.No.168 of 1994.\n<\/p>\n
6.    On the basis of her claim to a 1\/9th share in  the estate <\/p>\n
of   Late   Meeralava   Rawther   the   petitioner,   Shehammal   filed <\/p>\n
O.S.No.126   of   1992   on   25th  May,   1992,   seeking   partition   of <\/p>\n
the plaint properties comprising the same 1.70 acres of land <\/p>\n
in respect of which the other two suits had been filed. The <\/p>\n
said   suit   was   also   subsequently   transferred   to   the   Court   of <\/p>\n
Subordinate   Judge,   Thodupuzha,   and   was   renumbered   as <\/p>\n
                                                                             6<\/span><\/p>\n
O.S.No.169   of  1994   and  was   jointly  taken   up  for   trial  along <\/p>\n
with   O.S.No.171   of   1992.          By   a   common   judgment   dated <\/p>\n
15.11.1996,   the   learned   Trial   Judge   dismissed   O.S.No.171   of <\/p>\n
1992   filed   by   the   Respondent   No.1,   for   want   of   evidence.\n<\/p>\n
O.S.No.169   of   1994   filed   by   Shehammal   was   decreed   and   in <\/p>\n
view   of   the   findings   recorded   in   O.S.No.169   of   1994,   the <\/p>\n
trial   court   dismissed   O.S.No.168   of   1994   filed   by   Muhammed <\/p>\n
Rawther,   the   Respondent   No.2   herein.                A   subsequent <\/p>\n
application filed by the plaintiff in O.S.No.171 of 1992 for <\/p>\n
restoration   of   the   said   suit   and   another   application   for <\/p>\n
setting   aside   the   decree   in   O.S.No.169   of   1994,   were <\/p>\n
dismissed by the trial court.\n<\/p>\n
7.    The   Respondent   No.1   herein,   Hassan   Khani   Rawther,   moved <\/p>\n
the   High   Court   by   way   of   C.M.A.Nos.191   of   2000   and   247   of <\/p>\n
2000   and  the   High  Court   by  its   judgment  dated   17.1.2003  set <\/p>\n
aside the decree in O.S.Nos.171 of 1992 and 169 of 1994 and <\/p>\n
directed   the   trial   court   to   take   back   O.S.Nos.171   of   1992 <\/p>\n
and   169   of   1994   to   file   and   to   dispose   of   the   same   on <\/p>\n
                                                                              7<\/span><\/p>\n
merits.     On   remand,   the   learned   Subordinate   Judge   dismissed <\/p>\n
O.S.No.171   of   1992,   disbelieving   the   story   of   oral   gift <\/p>\n
propounded   by   the   Respondent   No.1.     The   matter   was   again <\/p>\n
taken   to   the   High   Court   against   the   order   of   the   learned <\/p>\n
Subordinate   Judge.     The   Respondent   No.1   filed   R.F.A.Nos.75 <\/p>\n
of   2004   and   491   of   2006   in   the   Kerala   High   Court   and   the <\/p>\n
same   were   allowed   by   the   learned   Single   Judge   holding   that <\/p>\n
even   if   the   plaintiff   failed   to   prove   the   oral   gift   in   his <\/p>\n
favour,   he   could   not   be   non-suited,   since   he   alone   was <\/p>\n
having   the   rights   over   the   assets   of   Meeralava   Rawther   in <\/p>\n
view   of   the   various   Deeds   of   Relinquishment   executed   by   the <\/p>\n
other sons and daughters of Meeralava Rawther.\n<\/p>\n
8.    Being   aggrieved   by   the   judgment   of   reversal   passed   by <\/p>\n
the   learned   Single   Judge   of   the   High   Court,   the   petitioners <\/p>\n
herein   in   the   four   Special   Leave   Petitions   have   questioned <\/p>\n
the validity of the said judgment.\n<\/p>\n
                                                                                               8<\/span><\/p>\n
9.         Appearing for the Petitioners in both the SLPs, Mr. M.T.\n<\/p>\n
George,   learned   Advocate,   submitted   that   the   impugned <\/p>\n
judgment   of   the   High   Court   was   based   on   an   erroneous <\/p>\n
understanding of the law relating to relinquishment of right <\/p>\n
in   a   property   by   a   Mohammedan.     It   was   submitted   that   the <\/p>\n
High   Court   had   failed   to   truly   understand   the   concept   of <\/p>\n
spes successionis  which has been referred to in paragraph 54 <\/p>\n
of          Mulla’s         “Principles         of         Mahomedan         Law”,         which <\/p>\n
categorically indicates that a Muslim is not entitled in law <\/p>\n
to   relinquish   an   expected   share   in   a   property.     Mr.   George <\/p>\n
submitted   that   the   said   doctrine   was   based   on   the   concept <\/p>\n
that   the   Mohammedan   Law   did   not   contemplate   inheritance   by <\/p>\n
way of expectancy during the life time of the owner and that <\/p>\n
inheritance   opened   to   the   legal   heirs   only   after   the   death <\/p>\n
of   an   individual   when   right   to   the   property   of   the   legal <\/p>\n
heirs   descended   in   specific   shares.   Accordingly,   all   the <\/p>\n
Deeds of Relinquishment executed by the siblings, except for <\/p>\n
the Respondent No.1, were void and were not capable of being <\/p>\n
                                                                                                       9<\/span><\/p>\n
acted   upon.     Accordingly,   when   succession   opened   to   the <\/p>\n
legal   heirs   of   Meeralava   Rawther   on   his   death,   each   one   of <\/p>\n
them succeeded to a specified share in his estate.\n<\/p>\n
10.    It   was   also   submitted   that   as   a   result,   the   finding   of <\/p>\n
the   High   Court   in   R.F.A.No.491   of   2006   that   even   if   the <\/p>\n
story   of  oral   gift  set   up  by   the  plaintiff   was  disbelieved, <\/p>\n
he   would   still   be   entitled   to   succeed   to   the   entire   estate <\/p>\n
of   the   deceased,   on   account   of   the   Deeds   of   Relinquishment <\/p>\n
executed   by   the   other   legal   heirs   of   Meeralava   Rawther,   was <\/p>\n
erroneous   and   was   liable   to   be   set   aside.     Mr.   George <\/p>\n
contended   that   the   High   Court   wrongly   interpreted   the <\/p>\n
decision   of   this   Court   in   the   case   of  Gulam   Abbas  Vs.  Haji <\/p>\n
Kayyum Ali & Ors.  [AIR 1973 SC 554].   In the said decision, <\/p>\n
this   Court   held   that   the   applicability   of   the   Doctrine   of <\/p>\n
Renunciation   of   an   expectant   right   depended   upon   the <\/p>\n
surrounding   circumstances   and   the   conduct   of   the   parties <\/p>\n
when   such   a   renunciation\/relinquishment   was   made.     It   was <\/p>\n
further         held         that         if         the         expectant         heir         received <\/p>\n
                                                                          10<\/span><\/p>\n
consideration   for   renouncing   his   expectant   share   in   the <\/p>\n
property   and  conducted   himself  in   a  manner   so  as   to  mislead <\/p>\n
the   owner  of   the  property   from  disposing   of  the   same  during <\/p>\n
his   life   time,   the   expectant   heir   could   be   debarred   from <\/p>\n
setting   up   his   right   to   what   he   was   entitled.   Mr.   George <\/p>\n
submitted   that   the   High   Court   overlooked   the   fact   that   this <\/p>\n
Court   had   held   that   mere   execution   of   a   document   was   not <\/p>\n
sufficient   to   prevent   the   legal   heirs   from   claiming   their <\/p>\n
respective shares in the parental property.\n<\/p>\n
11.    Mr. George submitted that apart form the above, the High <\/p>\n
Court   allowed   itself   to   be   misled   into   accepting   a   “family <\/p>\n
arrangement”   when   such   a   contingency   did   not   arise.     The <\/p>\n
transactions   involving   the   separate   Deeds   of   Relinquishment <\/p>\n
executed   by   each   of   the   heirs   of   Meeralava   Rawther, <\/p>\n
constituted   an   individual   act   and   could   not   be   construed   to <\/p>\n
be   a  family   arrangement.    Mr.  George   submitted  that   even  if <\/p>\n
the   story   made   out   on   behalf   of   the   Respondent   No.1,   that <\/p>\n
Meeralava Rawther made each of his children execute Deeds of <\/p>\n
                                                                           11<\/span><\/p>\n
Relinquishment   on   their   leaving   the   family   house,   is <\/p>\n
accepted,   the   same   cannot   by   any   stretch   of   imagination   be <\/p>\n
said   to   be   a   family   arrangement   which   had   been   accepted   by <\/p>\n
all the legal heirs of Meeralava Rawther.  Thus, misled into <\/p>\n
accepting   a   concept   of   “family   arrangement”,   the   High   Court <\/p>\n
erroneously   relied   on   the   decision   of   the   Allahabad   High <\/p>\n
Court   in  Latafat   Hussain  Vs.  Bidayat   Hussain  [AIR   1936   All.\n<\/p>\n
573],  Kochunni   Kochu  Vs.  Kunju   Pillai  (1956   Trav   –   Co   217, <\/p>\n
Thayyullathil Kunhikannan  Vs  Thayyullathil Kalliani And Ors.\n<\/p>\n
[AIR   1990   Kerala   226]   and  Hameed  Vs  Jameela  (2004   (1)   KLT <\/p>\n
586), where it had been uniformly held that when there is a <\/p>\n
family   arrangement   binding   on   the   parties,   it   would   operate <\/p>\n
as estoppel by preventing the parties from resiling from the <\/p>\n
same   or  trying   to  revoke   it  after   having  taken   advantage  of <\/p>\n
such arrangement. Mr. George submitted that having regard to <\/p>\n
the   doctrine   of  spes   successionis,   the   concept   of   estoppel <\/p>\n
could not be applied to Muslims on account of the fact that <\/p>\n
the law of inheritance applicable to Muslims is derived from <\/p>\n
                                                                                            12<\/span><\/p>\n
the Quran, which specifies specific shares to those entitled <\/p>\n
to   inheritance   and   the   execution   of   a   document   is   not <\/p>\n
sufficient          to         bar         such         inheritance.              Accordingly, <\/p>\n
renunciation   by   an   expectant   heir   in   the   life   time   of   his <\/p>\n
ancestor   is   not   valid   or   enforceable   against   him   after   the <\/p>\n
vesting   of   the   inheritance.     Mr.   George   reiterated   that   the <\/p>\n
Deeds   of   Relinquishment   between   A2   to   A6   could   not   be <\/p>\n
treated   as   a   “family   arrangement”   since   all   the   members   of <\/p>\n
the   family   were   not   parties   to   the   said   Deeds   and   his <\/p>\n
position   not   having   altered   in   any   way,   the   Respondent   No.1 <\/p>\n
is   not   entitled   to   claim   exclusion   of   the   other   heirs   of <\/p>\n
Late Meeralava Rawther from his estate.\n<\/p>\n
12.    In   this   regard,   Mr.   George   also   drew   our   attention   to <\/p>\n
Section   6   of   the   Transfer   of   Property   Act,   1882,   where   the <\/p>\n
concept   of  spes  successionis   has   been   incorporated.     It   was <\/p>\n
pointed out that Clause (a) of Section 6 is in  pari materia <\/p>\n
with   the   doctrine   of  spes  successionis,   as   incorporated   in <\/p>\n
paragraph   54   of   Mulla’s   “Principles   of   Mahomedan   Law”   and <\/p>\n
                                                                           13<\/span><\/p>\n
provides that the chance of a person succeeding to an estate <\/p>\n
cannot be transferred.\n<\/p>\n
13.    In   view   of   his   aforesaid   submissions,   Mr.   George <\/p>\n
submitted   that   the   impugned   judgment   and   decree   of   the   High <\/p>\n
Court   was   liable   to   be   set   aside   and   that   of   the   learned <\/p>\n
Subordinate Judge was liable to be restored.\n<\/p>\n
14.    Mr.   V.   Giri,   learned   Advocate,   who   appeared   for   the <\/p>\n
Respondent No.1, urged that in view of the three-Judge Bench <\/p>\n
decision   in  Gulam   Abbas’s   case   (supra),   it   was   not   open   to <\/p>\n
the   Petitioner   to   claim   that   the   Doctrine   of   Estoppel   would <\/p>\n
not   be   applicable   in   the   facts   of   this   case.     Mr.   Giri <\/p>\n
submitted   that   the   view   expressed   in  Gulam   Abbas’s   case <\/p>\n
(supra)   had   earlier   been   expressed   by   other   High   Courts   to <\/p>\n
which   reference   has   been   made   hereinbefore.     He   urged   that <\/p>\n
all   the   Courts   had   taken   a   consistent   view   that   having <\/p>\n
relinquished   his   right   to   further   inheritance,   a   legal   heir <\/p>\n
could   not   claim   a   share   in   the   property   once   inheritance <\/p>\n
opened on the death of the owner of the property.\n<\/p>\n
                                                                           14<\/span><\/p>\n
15.    Mr.   Giri   contended   that   any   decision   to   the   contrary <\/p>\n
would   offend   the   provisions   of   Section   23   of   the   Indian <\/p>\n
Contract   Act,  1872,   as  being   opposed  to   public  policy.     Mr. <\/p>\n
Giri   urged   that   the   principles   of   Mahomedan   law   in   relation <\/p>\n
to   the   law   as   incorporated   in   the   Transfer   of   Property   Act <\/p>\n
and   the   Indian   Contract   Act,   had   been   considered   in   great <\/p>\n
detail   by   the   three-Judge   Bench   in       Gulam   Abbas’s   case <\/p>\n
(supra).     Learned   counsel   pointed   out   that   on   a   conjoint <\/p>\n
reading   of   Section   6   of   the   Transfer   of   Property   Act   and <\/p>\n
paragraph   54   of   Mulla’s   “Principles   of   Mahomedan   Law”   it <\/p>\n
would   be  quite   evident  that   what  was   sought  to   be  protected <\/p>\n
was   the   right   of   a   Mohammedan   to   the   chance   of   future <\/p>\n
succession   to   an   estate.     Learned   counsel   submitted   that <\/p>\n
neither   of   the   two   provisions   takes   into   consideration   a <\/p>\n
situation   where   a   right   of  spes   successionis  is   transferred <\/p>\n
for   a   consideration.     Mr.   Giri   submitted   that   in  Gulam <\/p>\n
Abbas’s   case   (supra)   the   said   question   was   one   of   the <\/p>\n
important   questions   which   fell   for   consideration,   since   it <\/p>\n
                                                                                                          15<\/span><\/p>\n
had a direct bearing on the question in the light of Section <\/p>\n
23   of   the   Indian   Contract   Act,   1872.     Mr.   Giri   submitted <\/p>\n
that   the   bar   to   a   transfer   of   a   right   of  spes   successionis  <\/p>\n
is   not   an   absolute   bar   and   would   be   dependent   on <\/p>\n
circumstances           such          as         receipt         of         consideration                 or <\/p>\n
compensation   for   relinquishment   of   such   expectant   right   in <\/p>\n
future.     Mr.   Giri   urged   that   the   Special   Leave   Petitions <\/p>\n
were wholly misconceived and were liable to be dismissed.\n<\/p>\n
16.    From   the   submissions   made   on   behalf   of   the   respective <\/p>\n
parties   and   the   facts   of   the   case,   three   questions   of <\/p>\n
importance emerge for decision, namely:-\n<\/p>\n
(i)           Whether   in   view   of   the   doctrine   of                                         spes  <\/p>\n
         successionis, as embodied in Section 6 of the Transfer <\/p>\n
         of Property Act, 1882, and in paragraph 54 of Mulla’s <\/p>\n
         “Principles            of          Mahomedan            Law”,            a         Deed          of <\/p>\n
         Relinquishment   executed   by   an   expectant   heir   could <\/p>\n
         operate   as   estoppel   to   a   claim   that   may   be   set   up   by <\/p>\n
                                                                           16<\/span><\/p>\n
          the   Executor   of   such   Deed   after   inheritance   opens   on <\/p>\n
          the death of the owner of the property?\n<\/p>\n
(ii)           Whether   on   execution   of   a   Deed   of   Relinquishment <\/p>\n
          after   having   received   remuneration   for   such   future <\/p>\n
          share,   the   expectant   heir   could   be   estopped   from <\/p>\n
          claiming a share in the inheritance?\n<\/p>\n
(iii)     Can   a  Mohammedan   by   means   of   a   Family   Settlement <\/p>\n
          relinquish  his  right  of  spes  successionis  when  he  had <\/p>\n
          still not acquired a right in the property?\n<\/p>\n
17.     Chapter   VI   of   Mulla’s   “Principles   of   Mahomedan   Law”\n<\/p>\n
deals with the general rules of inheritance under Mohammedan <\/p>\n
law.     Paragraph   54   which   falls   within   the   said   Chapter <\/p>\n
relates   to   the   concept   of   transfer   of  spes   successionis  <\/p>\n
which   has   also   been   termed   as   “renunciation   of   a   chance   of <\/p>\n
succession”.   The   said   paragraph   provides   that   the   chance   of <\/p>\n
a  Mohammedan heir-apparent succeeding to an estate cannot be <\/p>\n
said to be the subject of a valid transfer or release.   The <\/p>\n
                                                                                    17<\/span><\/p>\n
same   is   included   in   Section   6   of   the   Transfer   of   Property <\/p>\n
Act   and   the   relevant   portion   thereof,   namely,   clause   (a)   is <\/p>\n
extracted below :-\n<\/p>\n
       “6.   What   may   be   transferred.-  Property   of   any   kind <\/p>\n
       may   be  transferred,   except  as   otherwise  provided   by <\/p>\n
       this   Act   or   by   any   other   law   for   the   time   being   in <\/p>\n
       force.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
       (a) The chance of an heir-apparent succeeding to an <\/p>\n
            estate,   the   chance   of   a   relation   obtaining   a <\/p>\n
            legacy   on   the   death   of   a   kinsman,   or   any   other <\/p>\n
            mere   possibility   of   a   like   nature,   cannot   be <\/p>\n
            transferred.”<\/p><\/blockquote>\n
       The   provisions   of   Section   6(a)   have   to   be   read   along <\/p>\n
with Section 2 of the Act, which provides for repeal of Acts <\/p>\n
and   saving   of   certain   enactments,   incidents,   rights, <\/p>\n
liabilities   etc.   It   specifically   provides   that   nothing   in <\/p>\n
Chapter   II,  in   which  Section   6  finds   place,  shall   be  deemed <\/p>\n
to affect any rule of Mohammedan Law.\n<\/p>\n
18.    Inspite of the aforesaid provisions, both of the general <\/p>\n
law   and   the   personal   law,   the   Courts   have   held   that   the <\/p>\n
                                                                            18<\/span><\/p>\n
fetters   imposed   under   the   aforesaid   provisions   are   capable <\/p>\n
of   being   removed   in   certain   situations.     Two   examples   in <\/p>\n
this regard are –\n<\/p>\n
(i)     When   an   expectant   heir   willfully   does   something   which <\/p>\n
          has the effect of attracting the provisions of Section <\/p>\n
          115 of the Evidence Act, is he estopped from claiming <\/p>\n
          the   benefit   of   the   doctrine   of  spes   successionis,   as <\/p>\n
          provided   for   under   Section   6(a)   of   the   Transfer   of <\/p>\n
          Property  Act,  1882,  and  also  under  the  Mohammedan  Law <\/p>\n
          as  embodied  in  paragraph  54  of  Mulla’s  “Principles  of <\/p>\n
          Mahomedan Law”?\n<\/p>\n
(ii)             When   a   Mohammedan   becomes   a   party   to   a   family <\/p>\n
          arrangement, does it also entail that he gives up his <\/p>\n
          right of spes successionis.\n<\/p>\n
        The   answer   to   the   said   two   propositions   is   also   the <\/p>\n
answer to the questions formulated hereinbefore in paragraph <\/p>\n
16.<\/p>\n
                                                                            19<\/span><\/p>\n
19.    The  Mohammedan   Law   enjoins   in   clear   and   unequivocal <\/p>\n
terms that a chance of a Mohammedan heir-apparent succeeding <\/p>\n
to   an   estate   cannot   be   the   subject   of   a   valid   transfer   or <\/p>\n
release.     Section   6(a)   of   the   Transfer   of   Property   Act   was <\/p>\n
enacted   in   deference   to   the   customary   law   and   law   of <\/p>\n
inheritance prevailing among Mohammedans.\n<\/p>\n
20.    As   opposed   to   the   above,   are   the   general   principles   of <\/p>\n
estoppel as contained in Section 115 of the Evidence Act and <\/p>\n
the   doctrine   of   relinquishment   in   respect   of   a   future   share <\/p>\n
in   property.   Both   the   said   principles   contemplated   a <\/p>\n
situation   where   an   expectant   heir   conducts   himself   and\/or <\/p>\n
performs   certain   acts   which   makes   the   two   aforesaid <\/p>\n
principles   applicable   inspite   of   the   clear   concept   of <\/p>\n
relinquishment   as   far   as   Mohammedan   Law   is   concerned,   as <\/p>\n
incorporated   in   Section   54   of          Mulla’s   “Principles   of <\/p>\n
Mahomedan   Law”.    Great  reliance   has  been   placed  by   both  the <\/p>\n
parties   on   the   decision   in  Gulam   Abbas’s   case   (supra).\n<\/p>\n
                                                                             20<\/span><\/p>\n
While   dealing   with   a   similar   situation,   this   Court   watered <\/p>\n
down   the   concept   that   the   chance   of   a   Mohammedan   heir <\/p>\n
apparent   succeeding  to   an  estate   cannot  be   the  subject   of  a <\/p>\n
valid   transfer   on   lease   and   held   that   renunciation   of   an <\/p>\n
expectancy   in   respect   of   a   future   share   in   a   property   in   a <\/p>\n
case   where   the   concerned   party   himself   chose   to   depart   from <\/p>\n
the earlier views, was not only possible, but legally valid.\n<\/p>\n
Referring   to   various   authorities,   including   Ameer   Ali’s <\/p>\n
“Mohammedan   Law”,   this   Court   observed   that   “renunciation <\/p>\n
implies the yielding up of a right already vested”.   It was <\/p>\n
observed   in  the   facts  of   that  case   that  during   the  lifetime <\/p>\n
of   the   mother,   the   daughters   had   no   right   of   inheritance.\n<\/p>\n
Citing   the   decision   in   the   case   of  Mt.   Khannum   Jan  vs.  Mt. <\/p>\n
Jan   Bibi  [(1827)   4   SDA   210]   it   was   held   that   renunciation <\/p>\n
implies   the   yielding   up   of   a   right   already   vested.\n<\/p>\n
Accordingly,   renunciation   during   the   mother’s   lifetime   of <\/p>\n
the   daughters’   shares   would   be   null   and   void   on   the   ground <\/p>\n
that   an   inchoate   right   is   not   capable   of   being   transferred <\/p>\n
                                                                         21<\/span><\/p>\n
as such right was yet to crystallise.   This Court also held <\/p>\n
that   “under   the   Muslim   Law   an   expectant   heir   may, <\/p>\n
nevertheless,   be   part   of   a   course   of   conduct   which   may <\/p>\n
create an estoppel against claiming the right at a time when <\/p>\n
the   right   of   inheritance   has   accrued”.   It   was   observed   by <\/p>\n
the   learned   Judges   that   the   Contract   Act   and   the   Evidence <\/p>\n
Act   would   not   strictly   apply   since   they   did   not   involve <\/p>\n
questions   arising   out   of   Mohammedan   Law.           This   Court <\/p>\n
accordingly   held   that   the   renunciation   of   a   supposed   right, <\/p>\n
based   upon   an   expectancy,   could   not,   by   any   test   be <\/p>\n
considered “prohibited”.\n<\/p>\n
21.    This Court ultimately held that the binding force of the <\/p>\n
renunciation   of   a   supposed   right,   would   depend   upon   the <\/p>\n
attendant   circumstances   and   the   whole   course   of   conduct   of <\/p>\n
which it formed a part. In other words, the principle of an <\/p>\n
equitable   estoppel   far   from   being   opposed   to   any   principle <\/p>\n
of Mohammedan Law, is really in complete harmony with it.\n<\/p>\n
                                                                          22<\/span><\/p>\n
22.    On   the   question   of   family   arrangement,   this   Court <\/p>\n
observed   that   though   arrangements   arrived   at   in   order   to <\/p>\n
avoid future disputes in the family may not technically be a <\/p>\n
settlement, a broad concept of a family settlement could not <\/p>\n
be the answer to the doctrine of spes successionis.\n<\/p>\n
23.    There  is little  doubt that  ordinarily there  cannot be  a <\/p>\n
transfer of  spes successionis,  but in the exceptions pointed <\/p>\n
out   by   this   Court   in  Gulam   Abbas’s   case   (supra),   the   same <\/p>\n
can   be   avoided   either   by   the   execution   of   a   family <\/p>\n
settlement or by accepting consideration for a future share.\n<\/p>\n
It could then operate as estoppel against the expectant heir <\/p>\n
to claim any share in the estate of the deceased on account <\/p>\n
of the doctrine of  spes successionis.  While dealing with the <\/p>\n
various   decisions   on   the   subject,   which   all   seem   to   support <\/p>\n
the   view  taken   by  the   learned  Judges,   reference  was   made  to <\/p>\n
the   decision   of   Chief   Justice   Suleman   of   the   Allahabad   High <\/p>\n
Court   in   the   case   of  Latafat   Hussain  Vs.  Hidayat   Hussain <\/p>\n
[AIR   1936   All   573],   where   the   question   of   arrangement <\/p>\n
                                                                            23<\/span><\/p>\n
between   the   husband   and   wife   in   the   nature   of   a   family <\/p>\n
settlement, which was binding on the parties, was held to be <\/p>\n
correct in view of the fact that a presumption would have to <\/p>\n
be   drawn  that   if  such   family  arrangement   had  not   been  made, <\/p>\n
the   husband   could   not   have   executed   a   deed   of   Wakf   if   the <\/p>\n
wife   had   not   relinquished   her   claim   to   inheritance.     It   is <\/p>\n
true   that   in   the   case   of  Mt.   Khannum   Jan  (supra),   it   had <\/p>\n
been   held   by   this   Court   that   renunciation   implied   the <\/p>\n
yielding   up   of   a   right   already   vested   or   desisting   from <\/p>\n
prosecuting   a   claim   maintainable   against   another,   and   such <\/p>\n
renunciation during the lifetime of the mother of the shares <\/p>\n
of   the   daughters   was   null   and   void   since   it   entailed   the <\/p>\n
giving   up   of   something   which   had   not   yet   come   into <\/p>\n
existence.\n<\/p>\n
24.    The   High   Court   after   considering   the   aforesaid   views   of <\/p>\n
the   different   jurists   and   the   decision   in   connection   with <\/p>\n
the   doctrine   of   relinquishment   came   to   a   finding   that   even <\/p>\n
if   the   provisions   of   the   doctrine   of  spes   successionis  were <\/p>\n
                                                                         24<\/span><\/p>\n
to   apply,   by   their   very   conduct   the   Petitioners   were <\/p>\n
estopped from claiming the benefit of the said doctrine.   In <\/p>\n
this   context,   we   may   refer   to   yet   another   principle   of <\/p>\n
Mohammedan   Law   which   is   contained   in   the   concept   of   Wills <\/p>\n
under   the   Mohammedan   Law.          Paragraph   118   of     Mulla’s <\/p>\n
“Principles   of   Mahomedan   Law”   embodies   the   concept   of   the <\/p>\n
limit   of   testamentary   power   by   a  Mohammedan.     It   records <\/p>\n
that   a   Mohammedan   cannot   by   Will   dispose   of   more   than   a <\/p>\n
third   of  the   surplus  of   his  estate   after  payment   of  funeral <\/p>\n
expenses   and   debts.     Bequests   in   excess   of   one-third   cannot <\/p>\n
take effect unless the heirs consent thereto after the death <\/p>\n
of   the   testator.        The   said   principle   of   testamentary <\/p>\n
disposition   of   property   has   been   the   subject   matter   of <\/p>\n
various   decisions   rendered   by   this   Court   from   time   to   time <\/p>\n
and   it   has   been   consistently   stated   and   reaffirmed   that   a <\/p>\n
testamentary disposition by a Mohammedan is binding upon the <\/p>\n
heirs   if  the   heirs  consent   to  the   disposition  of   the  entire <\/p>\n
property   and   such   consent   could   either   be   express   or <\/p>\n
                                                                          25<\/span><\/p>\n
implied.   Thus,   a   Mohammedan   may   also   make   a   disposition   of <\/p>\n
his entire property if all the heirs signified their consent <\/p>\n
to   the   same.   In   other   words,   the   general   principle   that   a <\/p>\n
Mohammedan   cannot   by   Will   dispose   of   more   than   a   third   of <\/p>\n
his   estate   after   payment   of   funeral   expenses   and   debts   is <\/p>\n
capable   of   being   avoided   by   the   consent   of   all   the   heirs.\n<\/p>\n
In   effect,   the   same   also   amounts   to   a   right   of <\/p>\n
relinquishment   of   future   inheritance   which   is   on   the   one <\/p>\n
hand   forbidden   and   on   the   other   accepted   in   the   case   of <\/p>\n
testamentary   disposition.   Having   accepted   the   consideration <\/p>\n
for   having   relinquished   a   future   claim   or   share   in   the <\/p>\n
estate of the deceased, it would be against public policy if <\/p>\n
such   a   claimant   be   allowed   the   benefit   of   the   doctrine   of <\/p>\n
spes   successionis.  In   such   cases,   we   have   no   doubt   in   our <\/p>\n
mind that the principle of estoppel would be attracted.\n<\/p>\n
25.    We   are,   however,   not   inclined   to   accept   that   the <\/p>\n
methodology resorted to by  Meeralava Rawther can strictly be <\/p>\n
                                                                          26<\/span><\/p>\n
said   to   be   a   family   arrangement.   A   family   arrangement   would <\/p>\n
necessarily   mean   a   decision   arrived   at   jointly   by   the <\/p>\n
members   of   a   family   and   not   between   two   individuals <\/p>\n
belonging   to   the   family.     The   five   deeds   of   relinquishment <\/p>\n
executed by the five sons and daughters of Meeralava Rawther <\/p>\n
constitute   individual   agreements   entered   into   between <\/p>\n
Meeralava   Rawther   and   the   expectant   heirs.              However, <\/p>\n
notwithstanding the above, as we have held hereinbefore, the <\/p>\n
doctrine   of  estoppel   is  attracted   so  as   to  prevent   a  person <\/p>\n
from   receiving   an   advantage   for   giving   up   of   his\/her   rights <\/p>\n
and   yet  claiming   the  same   right  subsequently.     In   our  view, <\/p>\n
being   opposed   to   public   policy,   the   heir   expectant   would   be <\/p>\n
estopped   under  the   general  law   from  claiming   a  share   in  the <\/p>\n
property   of  the   deceased,  as   was  held   in  Gulam   Abbas’s  case <\/p>\n
(supra).\n<\/p>\n
                                                                         27<\/span><\/p>\n
26.    We are not, therefore, inclined to entertain the Special <\/p>\n
Leave   Petitions   and   the   same   are   accordingly   dismissed,   but <\/p>\n
without any order as to costs.\n<\/p>\n
                                               ……………………………………………………J.\n<\/p>\n
                                                   (ALTAMAS KABIR)<\/p>\n
                                               ……………………………………………………J.\n<\/p>\n
                                                   (CYRIAC JOSEPH)<\/p>\n
                                               ……………………………………………………J.\n<\/p>\n
                                              (SURINDER SINGH NIJJAR)<\/p>\n
New Delhi<\/p>\n
Dated: 02.08.2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shehammal vs Hasan Khani Rawther & Ors on 2 August, 2011 Author: A Kabir Bench: Altamas Kabir, Cyriac Joseph, Surinder Singh Nijjar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-59964","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShehammal vs Hasan Khani Rawther & Ors on 2 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shehammal-vs-hasan-khani-rawther-ors-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shehammal vs Hasan Khani Rawther & Ors on 2 August, 2011 - 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