Case ID: 3130

Judgment:
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 in the inheritance "In the instant case	 it is evident that the release deeds exhibit D/2 and exhibit 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 vs 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 vs Kengayil Pattikavil Kunbi Avulla(1) in preference to the view adopted by the Allahabad High Court in Latafat Hussain vs Hidayat Hussain(2) followed by the	 Travancore Cochin High Court in Kochunni Kachu Muhammed vs 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 vs 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	 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 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 vs 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 vs 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 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 	 and It was pointed out in 	 at PP. 876 7	 that although a reversionary right cannot be the subject of a transfer	 for such a transfer is prohibited by section 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 vs Bisar Ali Khan	(1) the Oudh Chief Court has relied upon Hurmoot Ool Nisa Begum 'section 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 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. 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. K.B.N. Appeal allowed.

Summary:
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 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 vs Abdul Razack (A.I.R. in preference to the view adopted by the Allahabad High Court in Latafat Hussain vs 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 vs Bidayat Hussain	 A.I.R. 1936 All. 573	 approved. View contra in Abdul Kafoor vs Abdul Ratack	 A.I.R. 1959 Mad.131 and Asa Beevi vs Karuppan	 (1918) 41 Madras I.L.R. 365	 disapproved. Ameer Ali 's Mahomedan Law	 Vol. 11	 Hurmoot Ool Nisa Begum vs Allahdis Khan	 (1871) 17 W.R.P.C. 108 and Mohammad Ali Khan vs 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.)