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PETITIONER: GULAM ABBAS

       Vs.

RESPONDENT: HAJI KAYYUM ALI & ORS.

DATE OF JUDGMENT18/09/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N. MUKHERJEA, B.K.

CITATION:  1973 AIR  554            1973 SCR  (2) 300  1973 SCC  (1)   1

ACT: Mahomedan  Law-Estoppel-Execution  of  deeds   acknowledging receipt  of valuable consideration and relinquishing  future possible rights of inheritance in the properties of  father- On  father’s death executants filing suit for  partition  of properties  comprised in deed-Applicability of the  rule  of estoppel-Evidence Act, 1872-Section 115.

HEADNOTE: Muslim jurisprudence, where theology and moral concepts  are found  sometimes  mingled  with  secular  utilitarian  legal principles,  contains a very elaborate theory of acts  which are good (because they proceed from haana), those which  are bad  (because  they exhibit ’qubuh’), and  those  which  are neutral  per  se.  It classifies them according  to  varying degrees  of approval or disapproval attached to  them.   The renunciation of a supposed right, based upon an  expectancy, could   not,  by  any  test  found  there,   be   considered "prohibited".   The binding, force in future of such a  ren- uticiation   would,   even  according   to   strict   Muslim jurisprudence,  depend upon the attendant circumstances  and the  whole course of conduct of which it forms a  part.   In other  words, the principle of equitable estoppel, far  from being opposed to any principle of Muslim Law will he  found, on  investigation, to be completely in consonance  with  it. [306 F] Abdul Rahim, Muhammedan Jurisprudence, P. 106, referred to. K,  a  Muslim, had incurred debts so heavily  that  all  his property  would  have  been swallowed up  to  liquidate  the debts.   The appellant and two of his brothers,  with  their labour  and  money, rescued the estate of their  father  and paid  up the debts.  Two other sons of K who could not  con- tribute  anything  towards the clearing up of the  debts  of their  father executed deeds acknowledging receipt  of  cash and  moveable properties as consideration for  not  claiming any  eights  in future in the properties  mentioned  in  the deeds.  On K’s death the two sons who had executed the deeds instituted a suit for partition of the properties  mentioned in  the  deeds.  The first appellate court  ,held  that  the deeds in question evidenced family settlements and that  the sons  were  estopped  from  claiming  their  share  in   the

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inheritance.   The High Court in second appeal, decreed  the suit.   It proceeded on the assumption that, if law had  not prohibited  the  transfer of his right of inheritance  by  a muslim  heir,  an estoppel would have operated  against  the respondent  on the findings given and held that the rule  of Muslim  Personal law on the subject had the same  effect  as Section  6  (a).  of the Transfer of Property  Act  and  the chance of a Mahomedan heir apparent succeeding to an  estate could  not be the subject of a valid transfer of lease.   In coming  to  this conclusion, the High Court  relied  on  the decision  of the Madras High Court in Abdul Kafoor v.  Abdul Razack  (A.I.R.  1959 Mad. 131) in preference  to  the  view adopted  by the Allahabad High Court in Latafat  Hussain  v. Bidayat Hussain (A.I.R. 1936 All. 573.) Allowing  the  appeal  and setting aside  the  judgment  and decree of the High Court,  HELD: Upon the facts and circumstance in the case found  by the  courts  below, the two sons could not, when  rights  of inheritance vested 301 in  them at the time of, their father’s death,  claim  these rights as such a claim would be barred by estoppel. The  object  of  the rule of Mahomedan law  which  does  not recognise a purported transfer, of a spes successionis as  a legally  valid transfer at all, is not to prohibit  anything but  only  to  make  it clear what is  and  what  is  not  a transferable  right or interest in property just as this  is what  Section 6(a) of the Transfer of Property Act is  meant to  do.   Its  purpose could not be to  protect  those  who, receive consideration for what they do not immediately  have so  as to be able to transfer it at all. It is not  possible to  concur with the view of the Madras High Court  in  Abdul Kafoor’s  case  that a renunciation of an expectancy,  as  a purported  but  legally ineffective transfer, is  struck  by section 23 of the Indian Contract Act.  As it would be  void as a transfer at all there was no need to rely on section 23 of the Contract Act, If there was no "transfer" of  property at  all,  which  was  the correct  position,  but  a  simple contract  which  could  only  operate  in  future,  it   was certainly not intended to bring about an immediate  transfer which was all that the rule of muslim law invalidated.   The real  question is whether, quite apart from any transfer  or contract,  the  declarations  in  the  deeds  of   purported relinquishment  and receipt of valuable consideration  could not  be parts of a course of conduct over a number of  years which, taken as a whole, created a bar against a  successful assertion  of a right to property when that right  actually, came  into  being.  An equitable estoppel operates,  if  its elements  are established as a rule of  evidence  preventing the assertions of rights which may otherwise exist. [304 D] While the Madras view is based upon the erroneous assumption that  a renunciation of a claim to inherit in future  is  in itself, illegal or prohibited by Muslim law, the View of the Allahabad High Court in Latafat Hussain’s case, while  fully recognising that "under the Mohammedan law relinquishment by an heir who has no interest in the life-time of his ancestor is invalid and void", correctly lays down that such an aban- donment  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. Latafat  Hussain v. Bidayat Hussain, A.I.R. 1936  All.  573, approved. View  contra in Abdul Kafoor  v. Abdul Ratack,  A.I.R.  1959 Mad.131  and Asa Beevi v. Karuppan, (1918) 41 Madras  I.L.R. 365, disapproved.

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Ameer  Ali’s Mahomedan Law, Vol. 11, Hurmoot-Ool-Nisa  Begum v.  Allahdis Khan, (1871) 17 W.R.P.C. 108 and  Mohammad  Ali Khan v. Nisar Ali Khan, A.I.R. 1928 Oudh 67, referred to. (Since  the Court was of opinion, that there was nothing  in law  to  bar the application of the  principle  of  estoppel contained  in  section  115 of the  Evidence  Act  upon  the totality of facts found by the final court of facts, it  was found  unnecessary to deal with at length with the  question whether the facts found could give rise to an inference of a "family settlement" in a technical sense.)

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2134 of 1970. Appeal  by special leave from the judgment and  order  dated March  5, 1970 of the Madhya Pradesh High Court  in  (Indore Bench) in Second Appeal No. 618 of 1964. K.   Rajendra Chowdhry, for the appellant. P.   C.  Bhartari, D. N. Mishra and J. B.  Dadachanji,  for, respondent No. 1. 302 The Judgment of the Court was delivered by BEG,  J.   This  is a Defendant’s appeal  by  Special  Leave against the judgment and decree of the High Court of  Madhya Pradesh allowing a second appeal in a partition suit between members of a family governed by Muslim law.  The  Defendant- Appellant  and  the Plaintiff-Respondent are  both  sons  of Kadir  Ali  Bohra who died on 5-4-1952 leaving  behind  five sons,  a  daughter and his widow as his heirs.   It  appears that  Kadir Ali had incurred debts so heavily that  all  his property  would have been swallowed up to  liquidate  these. Three  of his sons, namely, Ghulam Abbas, Defendant  No.  1, Abdullah,  Defendant No. 2, and Imdad, Defendant No. 3,  who had  prospered, came to his rescue so that the property  may be  saved.  But, apparently, they paid up the debts only  in order to get the properties for themselves to the  exclusion of  the  other  two  sons,  namely,  Kayyumali,   Plaintiff- Respondent, and Nazarali, Defendant No. 4, who executed,  on 10-10-1942,  deeds  acknowledging receipt of some  cash  and moveable  properties as consideration for not  claiming  any rights in future in the properties mentioned in the deeds in which  they  gave up their possible rights in  future.   The executant of each deed said :               "I   have   accordingly  taken   the’   things               mentioned above as the equivalent of my  share               and  I have out of free will written this.   I               have no claim in the properties hereafter  and               if  I put up a claim in future to any  of  the               properties  I  shall be proved false  by  this               document.   I  shall have no objection  to  my               father  giving  any of the  properties  to  my               other brothers.....". During   the   father’s  life-time,  when  all   chance   or expectation  of inheritance by either Kayyumali or  Nazarali could  be destroyed by disposition of property,  neither  of these  two  raised his little finger to  object.   The  only question  before  us  now  is  whether  the  Plaintiff   and Defendant  No.  4  are estopped by  their  declarations  and conduct  and  silence  from claiming  their  shares  in  the properties covered by these deeds. The  first Appellate Court, the final court on questions  of fact, recorded the following findings, after examining  the, whole set of facts before it, to conclude that the plaintiff and defendant No. 4 were estopped from claiming their shares

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in the inheritance               "In  the instant case, it is evident that  the               release deeds Ex.D/2 and Ex.D/3 were  executed               by   the  plaintiff  and  defendant   No.   4,               Nazarali, when the defendants NO. 1, 2 and  3               had  with their labour and money  straightened               the  status  of his father Kadar Ali  and  had               cleared up the debts which would have devoured               the,               303               whole property of Kadar Ali and the  plaintiff               was doing nothing and was in a way a burden to               his father.  In such state of things when  the               plaintiff  and  defendant No. 4  executed  the               release deeds in question, it can be said that               it  was  a family settlement  to  prevent  the               future  disputes that may arise and to  secure               the  peace and happiness in the family of  the               parties and thereby induced the defendants No.               1, 2 and 3 to believe that the plaintiff would               not claim a share in the suit properties  and               led  them to discharge the debts due to  Kadar               All  and  to  be  in  affluent   circumstances               themselves as  they are at present  and  the               plaintiff now seeks benefit of it against  his               own past undertakings". The  High Court reproduced the passage, quoted  above,  from the  judgment  of  the First Appellate  Court,  without  any dissent  from any of the findings of fact  contained  there. It  specifically  held that the Court below was  correct  in finding  that  consideration had passed  the  Plaintiff  and Defendant  No.  4  for the relinquishment  of  their  future possible  rights  of  inheritance.   It  proceeded  on   the assumption that, it the law had not prohibited the  transfer of  his right of inheritance by a Muslim heir,  an  estoppel would have operated against the Plaintiff and Defendant  No. 4  on the findings given.  It held that the rule. of  Muslim Personal  law on the subject has the same effect as  Section 6(a) of the Transfer of Property Act which lays down:               "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. It pointed out that, although, Section 2 of the Transfer  of Property Act provided that nothing in the second Chapter  of the, Act will be deemed to affect any rule of Mahomedan Law, so that section 6(a) contained in Chapter 2 could not really be applied, yet, the effect of Mahomedan Law itself was that the  chance  of a Mahomedan heir-apparent succeeding  to  an estate  cannot be the subject of a valid transfer or  lease" (See : Mulla’s Principles of Mahomedan Law-17th Edn. ss  54, page 45).  After equating the effect of the. rule of Mahomed an Law with that of Section 6(a) of the Transfer of Property Act,  the High Court applied the principle that no  estoppel can  arise  against statute to what it considered to  be  an estoppel put forward against a rule of Mahomedan law. The High Court had relied on a decision  of the Madras High’ Court in Abdul Kafoor v. Abdul Razack(l), which had been (1)  A.I.R. 1959 Mad. p. 131. 304 followed  by  the  Kerala High Court  without  giving  fresh reason  in  Valanhivil Kunchi v. Kengayil  Pattikavil  Kunbi Avulla(1) in preference to the view adopted by the Allahabad High Court in Latafat Hussain v. Hidayat Hussain(2) followed

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by  the,  Travancore  Cochin High Court  in  Kochunni  Kachu Muhammed  v. Kunj Pillai Muhammed(3) The principal  question for  decision  before  us  is  whether  the  Madras  or  the Allahabad High Court view is correct. The  Madras High Court, in Abdul Kapoor’s case  (supra)  had specifically  dissented from the Allahabad view  in  Latafat Hussain’ case (supra) on the ground that, if an estoppel was allowed  to  pleaded  as  a  defence,  on  the  strength  of relinquishment of a spes successionis for consideration, the effect  could be to permit the pro visions of Mahomedan  Law to  be defeated.  Hence, it held that such an attempt  would be  struck by section 23 of the Indian Con tract  Act.   The object however, of the rule of Mahomedan law which does  not recognise a purported transfer of a spes succession is as  a legally  valid transfer at all, is not to prohibit  anything but  only  to  make  it clear what is  and  what  is  not  a transferable  right or interest in property just as this  is what  section 6(a) of Transfer of Property Act is  meant  to do.   Its purpose could not be to protect those who  receive consideration for what they do not immediately have so as to be  able to transfer it at all.  It could, if protection  of any  party to a transaction could possibly underlie  such  a rule,  be more the protection of possible transfers so  that they may know what is and what is not a legally  enforceable transfer.   With due respect, we are unable to  concur  with the  view of the Madras High Court that renunciation  of  an expectancy, as a purported but legally ineffective transfer, is  struck by Section 23 of the Indian Contract Act.  As  it would be void as a transfer at all there was no need to rely on  Section 23 Contract Act, If there was no "transfer".  of property at all, which was the correct position but a simple contract,  which  could  only  operate  in  future,  it  was certainly, not intended to bring about an immediate transfer which was all that the rule of Muslim law invalidated.   The real  question was whether quite apart from any transfer  or contract,  the  declarations  in  the  deeds  of   purported relinquishment  and receipt of valuable consideration  could not  be parts of a course of conduct over a number of  years which, taken as a whole, created a, bar against a successful assertion  of a right to property when that  Tight  actually came’  into being.  An equitable estoppel operates,  if  its elements  are established, as a rule of evidence  preventing the assertion of rights which may otherwise exist. (1) A.F.R. 1964 Kerala P. 200      (2) A I R. 1936 All. 573. (3) A.I.R. 1956 Travancore 217. 305 High  Court in Asa Beevi v. Karuppan(1)  where  Macnaghten’s "Principles  and Precedents of Moohumudan Law",  Sir  Roland Wilson’s  Digest of Anglo-Mohhamadan Law" P. 260, and  Ameer Ali’s "Mohommedan Law" (Vol.  II, third edition, p.  50-51), and  Tyabji’s "Muslim Law" have been referred to in  support of  the conclusion that ",here is a large  preponderance  of authority  in  favour  of  the  view  that  a  transfer  or renuniciation of the right of inheritance before that  right vests  is  prohibited under the Mahomedan Law".   The  whole discussion  of  the principle in the body of  the  judgment, however brings out that the real reason is not a prohibition but that there cannot be a renunciation of a right which  is incohate or incomplete so long as it remains in that  state. In  fact,  it  is  not correct to  speak  of  any  right  of inheritance before it arises by the death of the predecessor who   could  have,  during  his  life-time,  deprived   the- prospective heir of his expectation entirely by dispositions inter vivos. Sir  Roland  Wilson, in his "Anglo Mohhamadan Law"  (P  260,

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paragraph 208) states the position thus :-               "For  the  sake  of  those,  readers  Who  are               familiar  with the joint ownership  of  father               and son according to the most widely prevalent               school  of Hindu Law, it is perhaps  desirable               to state explicitly that in Muhammadan, as  in               Roman   and  English  Law,  nemo   est   heres               viventis-a  living  person has, no  heir.   An               heir-apparent  or  presumptive  has  no   such               reversionary  interest as would enable him  to               object  to any sale or gift made by the  owner               in possession; see Abdul Wahid, L.R. 12  I.A.,               91, and 11 Cal. 597 All., 456 (1885) which was               followed  in Hasan Ali, 1 1 All.  456  (1889).               The converse is also true : a renunciation  by               an  expectant  heir  in the  lifetime  of  his               ancestor is not valid, or enforceable  against               him after the vesting of the inheritance". This is a correct statement, so far as it goes, of the  law, because  a bare renunciation  of an expectation  to  inherit not bind the expectant heir’s conduct in future.  But if the expectant  heir goes further and receives consideration  and so  conducts himself as to mislead an owner into not  making dispositions of his property inter vivos the expectant  heir could  be  debarred from setting up his right when  it  does unquestionably  vest in him  other words, the principle,  of estoppel remains untouched by this statement. As  the Madras Full Bench pointed out, the subject was  dis- cussed  more  fully, in Ameer Ali’s "Mohammedan  Law"  (Vol. 11),  than elsewhere.  There we find the reason for  or  the object underlying the rule.  It is that there is nothing  to renounce  in  such a case because an expectancy  remains  at most before it has mate- (1)  [1918] (41 Madras) I.L.R. 365. 306 rialized only an "incohate right". It is in this light  that the  following  observations in  Hurmoot-Ool-Nisa  Begum  v. Allehdia Khan,(‘) is explained by Ameer Ali :                "According to the Mahomedan Law the right  of               inheritance   may   be  renounced   and   such               renunciation  need not be express but  may  be               implied  from  the ceasing or  desisting  from               prosecuting   a  claim  maintainable   against               another." Ameer Ali explained, citing an opinion of the law  officers, given in Khanum Jan v. Jan Bibi; (2 .lm15 "Renunciation  implies  the yielding up of a  right  already vested, or the ceasing or desisting from prosecuting a claim maintainable  against another.  It is evident  that,  during the  life-time of the mother the daughters have no right  of inheritance   and  their  claim  on  that  account  is   not maintainable  against any person during her  life-time.   It follows,  therefore,  that  this  renunciation  during   the mother’s life-time of the daughters’ shares is null and void it  being  in  point of fact giving up  that  which  had  no existence." In  view of the clear exposition of the reason for the  rule contained  in the authorities relied upon by the Full  Bench of  the  Madras High Court in Asa Beevi’s case  (supra),  we think  that it described, by oversight, a rule based on  the disability of a person to transfer what he has not got as  a rule  of prohibition enjoined by Mohamedan Law.  The use  of the  word  "prohibited" by the Full Bench  does  not  really bring  out the object or character of the rule as  explained

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above. It  may be mentioned here that Muslim  Jurisprudence,  where theology and moral concepts are found sometimes mingled with secular  utilitarian  legal  principles,  contains  a   very elaborate  theory  of  acts which  are  good  (because  they proceed  from ’hasna’), those which are bad  (because,  they exhibit  "qubuh"), and those which are neutral per  se.   It classifies them according to ’varying degrees of approval or disapproval attached to them (see Abdur Rahim’s  "Muhammadan Jurisprudence"  P.  105).  The renunciation  of  a  supposed right,  based  upon an expectancy, could not,  by  any  test found there, be considered "prohibited".  The binding  force in  ’future of such a renunciation would, even according  to strict  Muslim  Jurisprudence,  depend  upon  the  attendant circumstances  and the whole course of conduct of  which  it forms  a  part..  I  In other words,  the  principle  of  an equitable estoppel, far from being opposed to any  principle of  Muslim  law  will  be found,  on  investigation,  to  be completely in consonance with it. (1) [1871] 17 W.R.P.C. 108 (2) [1827] 4 S.D.A. Rep. 210. 307 As  already indicated, while the Madras view is  based  upon the  erroneous assumption that a renunciation of a claim  to inherit  in  future is in itself illegal  or  prohibited  by Muslim law, the view of the Allahabad High Court,  expressed by  Suleman, C.J., in Latafat Hussain’s case  (supra)  while fully   recognising   that   "under   the   Mahomedan    law relinquishment  by an heir who has no interest in the  life- time  of his ancestor is invalid and void",  correctly  lays down that such an abandonment 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.  After considering several decisions, including the Full Bench of, the Madras High Court in Asa Beevi’s case (supra) Suleman, C.J., observed at page 575 :               "The question of estoppel is really a question               arising,  under  the  Contract  Act  and   the               Evidence  Act, and is not a question  strictly               arising under the Mahomedan Law."               He pointed out (at page 575-576)               "It   has  been  held  in  this   Court   that               contingent  reversioners  can  enter  into   a               contract  for consideration which may be  held               binding on them in case they actually  succeed               to the, estate : See 19 A.L.J. 799, and 21 A.L               J. 235.  It was pointed out in 24 A.L.J.  873,               at  PP.  876-7, that although  a  reversionary               right cannot be the subject of a transfer, for               such  a transfer is prohibited by s.  6,  T.P.               Act,  there  was.  nothing to  prevent  a  re-               versioner  from so acting as to estop  himself               by his own ,conduct from subsequently claiming               a  property  to which he may  succeed.   Among               other   cases  reliance  was  placed  on   the               pronouncement of their Lordships of the  Privy               Council in 40 All 487, where a reversioner was               held  bound by a compromise to which he was  a               party." Incidentally, we may observe that, in Mohammad Ali.  Khan v. Bisar  Ali  Khan,(1) the Oudh Chief Court  has  relied  upon Hurmoot-Ool-Nisa   Begum’s.  case  (supra)  to   hold   that "according to Mahomedan Law there may be renunciation of the right  to  inheritance  and such renunciation  need  not  be express  but  may be implied from the ceasing  or  desisting

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from prosecuting a ,claim maintainable against another". As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel,  contained in  Section 115 of the Evidence Act, against  the  plaintiff and (1)  A.I.R. 1928 Oudh 67. 308 Defendant  No.  4, upon the totality of facts found  by  the final Court of facts, which were apparently accepted by  the High  Court,, it is not necessary for us to deal  at  length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense. It  is true that in Latafat Hussain’s case (supra)  Suleman, C.J.,  had observed that the conclusion of  the  Subordinate Court, that there had been an arrangement between a  husband and  a wife "in the nature of a family settlement  which  is binding on the plaintiff", was correct.  This was held  upon circumstances which indicated that a husband would not  have executed a deed of Wakf if the wife had not relinquished her claim, to inheritance.  In other words, an arrangement which may avoid future disputes in the family, even though it  may not  technically be a settlement or definition  of  actually disputed  claims,  was  referred to  broadly  as  a  "family arrangement".   It was in this wide sense that in  the  case before us also, the first Appellate Court had considered the whole  set of facts and circumstances examined by it  to  be sufficient to raise the inference of what it described as  a "family settlement". As  our  law  relating to family arrangements  is  based  on English  law, we may refer here to a definition of a  family arrangement  in  Halsbury’s Laws of England,  (1)  where  we find:  A family arrangement is an agreement between  members of  the same family intended to be generally and  reasonably for  the  benefit  of  the  family  either  by  compromising doubtful  or  disputed rights or by  preserving  the  family property or the peace and security of the family by avoiding litigation  or by saving its honour.  We also find  there  : The agreement may be implied from a long course of ,dealing, ’but  it  is  more usual to embody  or  to  effectuate the against  in a deed no which the term ’family arrangement’ is :applied."  It is ,pointed out there : "Matters which  would be  fatal  to the validity of similar  transactions  between strangers are not objections to the binding effect of family arrangements." As we have already indicated, it is enough for the  decision of  this  case that the plaintiff and defendant No.  4  were estopped by their conduct, on an application of Section  115 Evidence  Act, from claiming any Tight to inheritance  which accrued  to  them, on their father’s death, covered  by  the deeds  of relinquishment for consideration, irrespective  of the  question  whether the, deeds could operate  as  legally valid  and effective surrenders of their spes  successionis. Upon the facts and circumstances in (1)  Halsbury’s  Laws  of England, 3rd. edn.   Vol.  17,  p. 215,216. 309 the  case  found  by  the courts ,below  we  hold  that  the plaintiff  and  defendant No. 4 could not,  when  rights  of inheritance  vested  in them at the time of  their  father’s death,  claim,  these  as such a claim would  be  barred  by estoppel. The result is that we allow this appeal, set aside the judg- ment  and the decree of the High Court, and restore that  of the  first  Appellate Court.  In the circumstances  of  this case, we order that the parties will bear their own costs.

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K.B.N.                      Appeal allowed. 310