- (1.) 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 and 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 lifetime, when all chance or expectation of inheritance by either Kayyumbi 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.
(2.) 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 inheritence : "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 Nos. 1, 2 and 3 had with their labour and money straightened the status of their father Kadarali and had cleared up the debts which would have devoured the 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 arises and to secure the peace and happiness in the family of the parties and thereby induced the defendants Nos. 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 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."
(3.) The High Court reproduced the passage, quoted above, from the judgment of the First Appellate Court, with out 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 to the Plaintiff and Defendant No. 4 for the relinquishment of their future possible rights of inheritance. It proceeded on the assumption that, if 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 (1) 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 Mohammedan 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 Mohamedan Law - 17th Edn. S. 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 principle that no estoppel can arise against statute to what it considered to be an estoppel put forward against a rule of Mahomedan Law.;