Gulam Abbas Vs. Haji Kayyum Ali &
Ors  INSC 225 (18 September 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1973 AIR 554 1973 SCR (2) 300 1973
SCC (1) 1
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.
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
renuticiation 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
contribute 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 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
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
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
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.
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.)
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
DefendantAppellant 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, PlaintiffRespondent,
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 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
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
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
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 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
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 Contract 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
(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 inchoate 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 theprospective heir of his expectation
entirely by dispositions inter vivos.
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 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
As the Madras Full Bench pointed out, the
subject was discussed more fully, in Ameer Ali's "Mohammedan Law"
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)
 (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
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)  17 W.R.P.C. 108 (2)  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 lifetime 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 reversionary
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 reversionary
from so acting as to stop 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 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
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
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 judgment 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.
K.B.N. Appeal allowed.