Gulam Abbas v. Hajj Kayyum Ali & Ors.

BEG, J. This is a Defendant's :ippeal by Special Leave against the judgment and decree of the High Court of Madhya Pradesh allowing .a second appeal in a partition suit bjetween members of a family governed by Muslim Jaw. The Defendant-Appellant and the Plaintilf-Respondent are both sons of Kadir Ali Bohra who died 011 5-4-1952 'leaving behind five sons, a daughter and his widow as his heirs. It a!Jpears that Kadir Ali had incurred debtS ~o heavily that all his property would have been swallowed up to liquidate these. Three of his sons, namely, Ghulam Abbas, Defen-dant No. l, Abdullah, Defendant No. 2, and Imdad, Defendant No. 3, who hdad .. prospered, came to his re~cdue so hthatdthbc prope · ~ may be save . But, apparently, they pa1 up t e e ts oniy 1 m order to get the properties for themselves to the .exclusion of the other two som, namely, Kayyumali, Phiintiff-Respondent, and Nazarali, Defendant No. 4, who executed, on 10-J0-1942, deeds acknowledging receipt of some cash and moveable· properties as consideration for not claiming any rights in future in the. proper-ties 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. l 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 estopjJed by their declara-tions and conduct and silence from claiming their shares in the properties covered by these deeds.

The first Appellate Court, the final court on quesiions of fact, recorded the f'ollowing findings, after examining the whole set of facts before it, to conclude that the plaintiff and defn1dant No. 4 were estopped from claiming their shares 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. l, 2 and 3 had with their labour and money straightened the status of his father Kadar Ali and !lad cleared up -the debts which would have devoured the

whole property of Kadar Ali and the plaintiff was do-ing 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 in-duced the defendants· No. l, .2 and .3 to believe that the plaintiff would not daim a share in the suit properties and led them to discharge the debts due to Kadar Ali 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 relinquish-ment ·of their future possible rights of inheritance. It proceeded on the assumption that, i.f 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. Tt 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 cl:iance 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 : Mul!a's Principles of Mahomedan Law-17th Bin. ss 54, page 45). After equating the effect of the rule of Mahomedan Law with that of Section 6 <.a) . of the Transfer of Property. Act, the High Court applied the P.nnc;ple that no estoppel can anse against statute to what it con-sidered to be. an estoppel put forward against a rule of Mahome-dan law.

Th~ High Court had relied on a decision of the Madras High Court m Abdul Kafoor v. Abdul Razack(1), which had been

(I) A.T.R. 1959 Mad. r. 131.

followed by the Kerala High Court without giving fresh reaso11:s, in Va!onhivil K1111chi v. Kengayil Pattikavil Kunbi Avulla(') in preference to the vie"'. adopted by_ th_~ Allahabad High Court in Latafat Hrusain v. Hidayat Hussam(·) followed by the Travan-core Cochin High Court in K~chunni Kach_u Muhamm_e~ v. Kunju Pillai Muhammed(") The prmcipal quesllon for dec1S1on before us is whether the Madras or the Allahabad High Court view is correct.

The Madras High Court, in Abdul Kafoor's case (supra) had specifically dissented from the Allahabad view in Latafat Hussain's case (supra) on the ground that, if an estop_pel ~as allowed to be pleaded as a defence, on the strength of rellnqmshment of a spes succe.1:1·io11is 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 c\Q!!S not recognise a purported transfer of a spes succession-is as a legally valid transfer at all, is nnt to prohi\iit 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 6Ca) of Transfer of Property Act is meant to do. Its purpose could not be to protect those wno receive consideration for what they do not immediately have so as to be ab!~ 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 w that they may know what is and what is not a legally enforce-able 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. H there was no "transfer" of property at all, which was the correct po~ition, 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 re-ceipt 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 propetry when that right actually came into being. An equitable estoppel operates. if its ~lements are established, as a rule of evidence preventing the assertion of rights which may otherwise exist.

We have also examined the earlier decisions of the Madras

m A.LR. 196~ Kcrala p. 200 icl A IR. 19)6 All. 57). (~) A.T.R. 195r1 Tra\·rtnc0rc 217.

High Court in Asa Becvi v. Karuppan(') where Macnaghten's "Principles and Precedents of Moohumudan Law", Sir Roland Wilson's Dige;t of 'Ang10-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 n 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 expecta-tion entirely by dispositions inter vivas.

Sir Roland Wilson, in his "Anglo Mohhamadan Law" ( p. 260, 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 Jiving person has no heir. An heir-apparent or pre-sumptive 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, LR. 12 I.A., 91, and 11 Cal. 597 All., 456 (1885) which was fol-lowed in Hasan Ali, 11 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 cannot b~nd 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 -G inter vivas the expectant heir could be debarred from setting up

his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement.

As the Madras Full Benci pointed out, the subject was dis-cussed more fully in Ameer Alt's "Mohammedan Law" (Vol. II) than elsewhere. There we find the reason for or the object under-JI lying 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) l.L R. 36;_

rialized only an "incohate right". It is in this light· that the following observations in Hurmoot-Ool-Nisa Begum v. Allehdia K h@, ( 1 ) is explained by Ameer Ali :

"According to the Mahomedan Law the right of in-heritance may be renounced and such renunciation need not be express t1ut may be implied from the ceasing or ll desisting from prosecuting a claim IJ\aintainab)e against another."

Ameer Ali explained, citing an opinion of the law officers, given in Khanwn hr, v. Jan Bibi;(')

"Renunciation implies the yielding up of a right rJrcady ve>ted, or the ceasing or desisting from prose-cuting a claim maintainable . against another. It is evident that, during the -life-time of the mother the daughters have no right of inheritance and 1heir claim on that account is not maintainable against any ·person during her life-time. It follows, therefore, that this re-nunciation during the mother's life-time of the daughters· D· shares is null and void it bBing in point of fact giving up that which had no existence."

In view of the clear exposition of the reason for the rule con-tainecl 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 trans.fer what he has not got as a rule of prohibition enjoined by Moham.edan 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 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 w:1ich nre bad (because they exhibit "qubuh"), and those whi~h ar~ neutral per se. It classifies them according to varying degrees of approval or disapproval attached to them (see Abdur Rahim\ "Muhammadan Jurisprudence" P. 105). The renuncia-tion of a supposed right, based upon an expectancy, could not, by any ·test found there, be considered "prohibited". The binding force in future C·~ such a renunciation would, even according to stric! Muslim Jurisprudence. depend upon the attendant circum-stances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoooel, far from being opposed to any principle of Muslim law will be found, on investigation. to be completely in consonance with it.

(I) [1871] 17 W.R.P.C. 108 (2) (1827] 4 S.D.A. Rer. 210.

As al;eady 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", cor-rectly Jays 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 accr·ued. A(ter 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 que;tion of estoppel is really a question aris-ing under the Contract A~t 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 re-versioners can enter into a contract for consideration which may bie held binding on them ;n case they actual-ly 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 prohibit-ed 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 reliancJ: was placed on the pronquncement 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,(') the Oudh Chief Court has relied upon llurmoot-Od/-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 from prosecuting a claim maintainabfo against another".

As we are ciearly of opinion that there is nothing in law to bar the application of the principle of ~stoppel, contained in Section 115 of the Evidence Act, against the plaintiff and

(I) A. I. R. J 928 Oudh 67.

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 ques-tion 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 hu~band and a wife "in the nature of a family seti!cment 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 arra[lgement which may avoid future disputes in the family, even though it may not technically be a settleme.nt or dcrinition 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 suffi-cient to raise the inference of what it described as a "family sc1tlemenf'.

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 compromisfug 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 eml:Jiociy or to effectuate the agreement in a deed to which the term 'family y arrangemenr is applied." It is pointed out there : "Matters which would be fatal to che validity of similar transactions bet-ween strangers are not obje•tions 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 right to inheritance which accrued to them, on their father's death, covered by the deeds of relinquish-ment for consideration, irrespective cf the question whether the deeds could operate as legally valid and effective surrenders of their spes succesrionis, Upon the facts and circumstances in

(1) H1lsb11ry's L1"'' of Engl;i.nd,

3rd.edn. Vol. 17.p.115.216.

the case found by the courts below we hold that the plaintiff and defedant 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 tear their own costs.

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 /, B. Dadachanji, for res-pondent No. 1.