- (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 April 5, 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 upto liquidate these. Three of his sons, namely, Gulam 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 October 10, 1942, deeds acknowledging receipt of some cash and movable 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 uture. 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.
(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 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 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 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 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 rights of inheritance by 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 Mohammedan Law, so that section 6 (a) contained in Chapter 2 could not really be applied, yet, the effect of Mohammaden Law itself was that "the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer of lease (See: Mulla's Principles of Mohammedan Law 17th Edn. , S. 54, page 45 ). After equating the effect of the rule of mohammedan Law with that of section 6 (a) of the Transfer of Property Act, the High Court applied the principle that the estoppel can arise against statute to what it considered to be an estoppel put forward against a rule of Mohammedan Law. The High Court had relied on a decision of the Madras. High Court in Abdul Kafoor v. Abdul Razak (AIR 1959 Mad. 131.) which had been followed by the Kerala High court without giving fresh reasons, in Valanhivil Kunchi v. Eengayil Pattikavil kunbi Avulla (AIR 1964 Ker. 200.), in preference to the view adopted by the Allahabad High Court in Latafat Hussain v. Hidayal Hussain (AIR 1936 Bom. 573.), followed by the Travancore Cochin high Court in Kochunni Kachu Mohammed v. Kunju Pillai Mohammed (AIR 1956 Tra 217. ). The principal question for decision before us is whether the Madras or the Allahabad High Court view is correct.
(3.) THE Madras High Court, in Abdul Kafoor's case (supra) had especially dissented from the Allahabad view in Latafat Hussain's case (supra) on the ground that, if an estoppel was allowed to be pleaded as a defence, on the strength of relinquishment of a spes succession is for consideration, the effect would be to permit the provisions of Mohammedan 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 Mohammedan 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), 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 transferees 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 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, 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 deed 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 that 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. We have also examined the earlier decisions of the Madras High court in Asa Beevi v. Karuppan (ILR (1918) 41 Mad. 366.) where Macnaughtan's Principles and Precedents of Mohammedan Law"', Sir Roland Wilson's Digestof"anjlo Mohammedan Law" p. 260, and Ameer Ali's "mohammedan Law" have been referred to in support of the conclusion that "there is a large preponderance of authority in favour of the view that a transfer of renunciation of the right of inheritance before that right vests is prohibited under the Mohammedan Law". The whole discussion of the principle in the body of the judgment, however, brings out 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 the prospective heir of his expectation entirely by dispositions inter vivos.;