Case note on Ghulam Abbas v. Hav Kayyum Ali 1973 (SC)

THE LAW : 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.

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 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 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.

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.)

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  1. Mohammad Rafi

    Dear Sir – I have one query – please clarify.

    We have one land in the name of my mother. We are 2 brothers and one sister. After demise of my father my mother make an agreement on 100 Rs stamp paper by distributing the land into 2 equal parts to me and my brother. Unfortunately we can not register on our names since land is under dispute (registrations are hold). Now situation is that my mother staying with my sister and not in goods terms with us and my sister is very much greedy in nature.

    Now my question is – will my mother can change her will and can make distribution unto her choice?

    Is my sister can claim for her share in the same property (She already got her property earlier but not in this land does she has any right if she claim in the court).

    Please clarify


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