Holding

A deed of relinquishment, when supported by consideration and the heir's conduct, creates an estoppel that bars the heir from claiming a share in the estate, and such relinquishment, though not a family settlement, is enforceable under the doctrine of spes successionis.

Summary

The case concerned the intestate estate of Meeralava Rawther, a Muslim who had executed deeds of relinquishment with five of his children (excluding his youngest son, Hassan) in exchange for consideration. After his death, Hassan claimed an oral gift of the entire property, while the other children and the petitioners sought partition based on their statutory shares. The Kerala High Court held that, despite the lack of proof of the oral gift, Hassan alone was entitled to the estate because the other heirs had relinquished their claims. The Supreme Court examined the doctrine of spes successionis under Section 6 of the Transfer of Property Act and paragraph 54 of Mulla's Principles of Mahomedan Law, noting that while a chance of succession cannot be transferred, it can be barred by estoppel when consideration is given or a family settlement is effected. Applying the principles from Gu/Am Abbas’s case, the Court held that the relinquishment deeds, though individual, gave rise to estoppel, preventing the heirs from later claiming a share. Consequently, the Special Leave Petitions were dismissed.

Issues considered

Whether a deed of relinquishment executed by an expectant Muslim heir can operate as estoppel to a claim after inheritance opens under the doctrine of spes successionis.
Whether receipt of consideration for relinquishing a future share can estop the expectant heir from claiming a share in the inheritance.
Whether a Muslim can, by means of a family settlement, relinquish his right of spes successionis before acquiring a vested right.

Legislation cited

Indian Contract Act, 1872s. 23
Indian Evidence Act, 1872s. 115
Transfer of Property Act, 1882s. 2, s. 6(a)

Subjects

Muslim personal lawspes successionisrelinquishmentestoppelTransfer of Property Actfamily settlementinheritancepublic policypartition

Judgment

[2011] 9 S.C.R. 718

A SHE HAM MAL
v.
HASAN KHANI RAWTHER AND ORS.
(Special Leave Petition (C) No. 7421-7422 of 2008)
AUGUST 2, 2011
B
[ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
SINGH NIJJAR, JJ.]

Mohammedan Law: Right of spes successionis -
C Relinquishment of - Held: Chance of a Mohammedan heir-
apparent succeeding to an estate cannot be the subject of a
valid transfer or release - Ordinarily there cannot be a transfer
of spes successionis, but the same can be avoided either by
the execution of a family settlement or by accepting
D consideration for a future share - It could then operate as
estoppel against the expectant heir to claim any share in the
estate of the deceased Of! account of the doctrine of spes
successionis - A testamentary disposition by a
Mohammedan is binding upon the heirs if the heirs consent
E to the disposition of the entire property and such consent
could either be express or implied - In the instant case, 'MR'
got all sons and daughters except respondent no. 1 to execute
relinquishment deeds whereby they all relinquished their •
respective claim to properties belonging to 'MR' on receipt of
F some consideration - The methodology resorted to by 'MR'
can be termed as a family arrangement - The five deeds of
relinquishment executed by the five sons and daughters of
'MR' constituted individual agreements entered into between
·'MR' and the expectant heirs - The heir expectants were
G estopped under the general law from claiming a share in the •
property of the deceased - Doctrine of spes successionis - '
Doctrine of estoppel - Transfer of Property Act, 1882.
One 'MR' was owner of the suit property comprising
of 1.70 acres of land. The petitioner was his daughter.
H 718
.SHEHAMMAL v. HASAN KHANI RAWTHER AND 719
ORS.·

Respondent nos.1 to 5 were sons and other· daughters A
of 'MR'. The .case of respondent no.f was that he
. continued to stay with his father throughout his lifetime
while other sons moved out of the family house on their
marriage or after marriage and each time his children left
the family house, 'MR' used to get them to execute a.
1 relinquishment deeds whereby on the receiptof some
\
consideration, each of them relinquished their respective
claim to the properties belonging to 'MR'. Respondent
no.1 was not required to execute any such deed as he
continued to stay with 'MR'. 'MR' died intestate in 1986 c
leaving the suit property as his estate. Respondent no.1
filed a suit for declaration of title, possession and ·
injunction in respect of the suit property basing his claim
on ah oral gift alleged to have been made in his favour
I by 'MR' in 1982. Thereafter respondent no.2 filed suit 0
· praying for injunction against respondent no.1 in respect
of the suit property. The petitioner filed a suit for partition
of the suit property on the basis of her claim to 1/9th
share in the estate of 'MR'. The trial court by common
order dismissed the suit filed by respondent no.1 and 2 E
respectively while it decreed the suit filed by the
petitioner. The High Court allowed the appeal of
respondent no.1 holding that even if respondent no.1
failed to prove the oral gift in his favour, he could not be
non-suited since he alone was having the rights over the
assets of 'MR' in view of the various deeds of F
relinquishment executed by the other sons and
daughters of 'MR'.
The question which arose for consideration in these
special leave petitions were whether in view of the G
doctrine of spes successionis, as embodied in Section 6
of the Transfer of Property Act, 1882, and in paragraph
54 of Mu Ila's "Principles of Mahomedan Law", a Deed of
Relinquishment executed by an expectant heir could
operate as estoppel to a claim that may be set up by the H
720 SUPREME COURT REPORTS [2011} 9 S.C.R.

A Executor of such Deed after inheritance opens on the
death of the owner of the property; whether on execution
of a Deed of Relinquishment after having received
remuneration for such future share, the expectant heir
could be estopped from claiming a share in the
B inheritance; and can a Mohammedan by means of a
Family Settlement relinquish his right of spes
successionis when he had still not acquired a right in the
property.

Dismissing the special leave petitions, the Court
c
HELD: 1.1. Chapter VI of Mulla's "Principles of
Mahomedan Law" deals with the general rules of
inheritance under Mohammedan law. Paragraph 54 which
falls within the said Chapter relates to the concept of
D transfer of spes successionis which has also been
termed as "renunciation of a chance of succession". The
said paragraph provides that the chance of a
Mohammedan heir-apparent succeeding to an estate
cannot be said to be the subject of a valid transfer or
E release. The same is included in Section 6 of the Transfer
of Property Act. Clause (a) of Section 6 lays down that
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,
F cannot be transferred. The provisions of Section 6(a) •
have to be read along with Section 2 of the Act, which
provides for repeal of Acts and saving of certain
enactments, incidents, rights, liabilities etc. It specifically
provides that nothing in Chapter II, in which Section 6
G finds place, shall be deemed to affect any rule of
Mohammedan Law. [Para 17] [730-G-H; 731-A-D]
1.2. The Mohammedan Law enjoins in clear and
unequivocal terms that a chance of a Mohammedan heir-
'
apparent succeeding to an estate cannot be the subject
H of a valid transfer or release. Section 6(a) of the Transfer
SHEHAMMAL v. HASAN KHAN! RAWTHER AND 721
ORS.
of Property Act was enacted in deference to the A
customary law and law of inheritance prevailing among
Mohammedans. As opposed to that are the general
principles of estoppel as contained in Section 115 of the
Evidence Act and the doctrine of relinquishment in
respect of a future share in property. Both the said B
principles contemplated a situation where an expectant
.. heir conducts himself and/or performs certain acts which
makes the two said principles applicable inspite of the
clear concept of relinquishment as far as Mohammedan
Law is concerned, as incorporated in Section 54 of c
Mulla's "Principles of Mahomedan Law". [Paras 19-20]
[732-B-E]
2.1. There is little doubt that ordinarily there cannor
be a transfer of spes successionis, but in the exceptions
pointed out by this Court in Gu/am Abbas's case, the same D
can be avoided either by the execution of a family
settlement or by accepting consideration for a future
share. It could then operate as estoppel against the
expectant heir to claim any share in the estate of the
deceased on account of the doctrine of spes E
successionis. [Para 23] [733-F-G]
Gu/am Abbas Vs. Haji Kayyum Ali & Ors. AIR 1973 SC
554 - relied on.
2.2. A testamentary disposition by a Mohammedan is F
binding upon the heirs if the heirs consent to the
disposition of the entire property and such consent could
either be express or implied. Thus, a Mohammedan may
also make a disposition of his entire property if all the
heirs signified their consent to the same. In other words, G
the general principle that a Mohammedan cannot by Will
dispose of more than a third of his estate after payment
of funeral expenses and debts is capable of being
avoided by the consent of all the heirs. In effect, the same
also amounts to a right of relinquishment of future H
722 SUPREME COURT REPORTS [2011) 9 S.C.R.

A inheritance which is on the one hand forbidden and on
the other accepted in the case of testamentary
disposition. Having accepted the consideration for
-
having relinquished a future claim or share In the estate
of the deceased, it would be against public policy if such
s a claimant be allowed the benefit of the doctrine of spes
successionis. in such cases, the principle of estoppel
would be attracted. [Para 24) [734-F-H; 735-A·B]
3. The methodology resorted to by 'MR' can strictly
be said to be a family arrangement. A family arrangement
C would necessarily mean a decision arrived at jointly by
the members of a family and not between two individuals
belonging to the family. The five deeds of relinquishment
executed by the five sons and daughters of 'MR'
constitute individual agreements enter~d Into between
D 'MR' and the expectant heirs. However, in this case, th~
doctrine of estoppal is attracted so as to prevent a person
from receiving an advantage for giving up of his/her
rights and yet claiming the same right subsequently.
Being opposed to public policy, the heir expectant would
E be estopped under the general law from claiming a share
In the property of the deceased, as was held In Gulam
Abbas's case. [Para 25) [735-C-F]
Latafat Hussain Vs. Bidayat Hussain AIR 1936 All. 573;
KochunniKochu Vs. Kunju Pillai (1956 Trav - Co 217; • •
F Thayyullathil Kunhikannan Vs Thayyul/athil Ka/fiani And Ors.
AIR 1990 Kerala 226 Hameed Vs Jamee/a (2004 (1) KLT
586 Mt. Khannum Jan vs. Mt. Jan Bibi (1827) 4 SDA 210 -
referred to.
Case Law Reference:
AIR 1973 SC 554 relied on Para 10,14, •
15, 20,23 '
AIR 1936 All. 573 referred to Para 11
H (1956) Trav - Co 217 referred to Para 11
SHEHAMMAL v. HASAN KHANI RAWTHER AND 723
ORS.

AIR 1990 Kerala 226 referred to Para 11 A
(2004 (1) KLT 586 referred to Para 11
(1827) 4 SDA 210 referred to Paras 20, 23
CIVIL APPELLATE JURISDICTION : SLP (Civil) No. B
7421-7422 of 2008. ·

From the Judgment and Order dated 18.10.2007 of the
High Court of Kerala at Ernakulam in RFA No. 75 of 2004 and
491 of 2006.
WITH
c
SLP (C) Nos. 14303-14304 of 2008.

V. Giri M.T. George, Binoj C. Augustine, Harshad V.
Hameed, K. Rajeev, K.N. Madhusoodhan and T.G. Narayanan
Nair for the appearing parties.
0

·The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Special Leave Petition (Civil)
Nos.7421-7422 of 2008 filed by one Shehammal and Special E
Leave Petition (Civil} Nos.14303-14304 of 2008 filed by one
Amina and others, both directed against the final judgment and
order dated 18.10.2007 passed by the Kerala High Court in
R.F.A.No.75 of 2004 (B} and R.F.A.No.491 of 2006, have been
taken up together for final disposal. The parties to the aforesaid F
SLPs, except for the Respondent No.6, Hassankhan, are
siblings. While the petitioner in SLP(C}Nos.7421-7422 of 2008
is the daughter of Late Meeralava Rawther, the Respondent
No.1, Hassan Khani Rawther, and the Respondent Nos.2 and
5 are the sons and the Respondent Nos.3 and 4 are the
daughters of the said Meeralava Rawther. The Respondent G
No.6, Hassankhan, is a purchaser of the shares of the
Respondent Nos.2 and 5, both heirs of Late Meeralava
Rawther. The remaining respondents are the legal heirs of
Muhammed Rawther, the second respondent before the High
H
724 SUPREME COURT REPORTS (2011] 9 S.C.R.

A Court. The petitioner in SLP(C)Nos.7421-7422 of 2008 is the
plaintiff in O.S.No.169 of 1994 and the third defendant in
...._ ---
O.S.No.171 of 1992, filed by Hassan Khani Rawther, is the
Respondent No.1 in all the four SLPs.

2. Meeralava Rawther died in 1986, leaving behind him
B \.-
surviving three sons and three daughters, as his legal heirs. At
'
the time of his death he possessed 1.70 acres of land in Survey
No.133/1 B of Thodupuzha village, which he had acquired on
the basis of a partition effected in the family of deceased
Meeralava Rawther in 1953 by virtue of Deed No.4124 of
c Thodupuzha, Sub-Registrars Office. Meeralava Rawther and
his family members, being Mohammedans, they are entitled to
succeed to the estate of the deceased in specific shares as
tenants in common. Since Meeralava Rawther had three sons
and three daughters, the sons were entitled to a 2/9th share in "•
D the estate of the deceased, while the daughters were each
~

entitled to a 1/9th share thereof.

3. It is the specific case of the parties that Meeralava
Rawther helped all his children to settle down in life. The
E youngest son, Hassan Khani Rawther, the Respondent No.1,
was a Government employee and was staying with him even
after his marriage, while all the other children moved out from
the family house, either at the time of marriage, or soon, •
thereafter. The case made out by the Respondent No.1 is that
F when each of his children left the family house Meeralava
•
Rawther used to get them to execute Deeds of Relinquishment,
whereby, on the receipt of some consideration, each of them
relinquished their respective claim to the properties belonging
to Meeralava Rawther. The Respondent No.1, Hassan Khani
Rawther, was the only one of Meeralava Rawther's legal heirs
G
who was not required by his father to execute such a deed.
•
4. Meeralava Rawther died intestate in 1986 leaving 1.70
'
acres of land as his estate. On 31st March, 1992, the
Respondent No.1, Hassan Khani Rawther filed O.S.No.171 of
H 1992 before the Court of Subordinate Judge, Thodupuzha,
SHEHAMMAL v. HASAN KHANI RAWTHER AND 725
ORS. [ALTAMAS KABIR, J.]
.. ~
+ seeking declaration of title, possession and injunction in A
respect of the said 1. 70 acres of land, basing his claim on an
oral gift alleged to have been made in his favour by Meeralava
Rawther in 1982.

5. On 6th April, 1992, the Respondent No.2, Muhammed B
~ Rawther, one of the brothers, filed O.S.No.90 of 1992 before
,,. the Court of Munsif, Thodupuzha, praying for injunction against
his brother, Hassan Khani Rawther, in respect of the suit
· property. The said suit was subsequently transferred to Jhe
Court of Subordinate Judge, Thodupuzha, and was renumbered
as O.S.No.168 of 1994.
c
6. On the basis of her claim to a 1/9th share in the estate
of Late Meeralava Rawther the petitioner, Shehammal filed
O.S.No.126 of 1992 on 25th May, 1992, seeking partition of
., ' the plaint properties comprising the same 1. 70 acres of land D
l in respect of which the other two suits had been filed. The said
suit was also subsequently transferred to the Court of
Subordinate Judge, Thodupuzha, and was renumbered as
O.S.No.169of1994 and was jointly taken up for trial along with
O.S.No.171 of 1992. By a common judgment dated E
15.11.1996, the learned Trial Judge dismissed O.S.No.171 of
1992 filed by the Respondent No.1, for want of evidence.
O.S.No.169 of 1994 filed by Shehammal was decreed and in
~
view of the findings recorded in O.S.No.169 of 1994, the trial
-t court dismissed O.S.No.168 of 1994 filed by Muhammed
" F
Rawther, the Respondent No.2 herein. A subsequent application
filed by the plaintiff in O.S.No.171 of 1992 for restoration of the
said suit and another application for setting aside the decree
in O.S.No.169 of 1994, were dismissed by the trial court.

7. The Respondent No.1 herein, Hassan Khani Rawther, G
moved the High Court by way of C.M.A.Nos.191of2000 and
"' ~.
247 of 2000 and the High Court by its judgment dated
17.1.2003 set aside the decree in O.S.Nos.171 of 1992 and
169 of 1994 and directed the trial court to take back
O.S.Nos.171 of 1992 and 169 of 1994 to file and to dispose H
726 SUPREME COURT REPORTS [2011] 9 S.C.R.

A of the same on merits. On remand, the learned Subordinate _.).
...
Judge dismissed O.S.No.171 of 1992, disbelieving the story
of oral gift propounded by the Respondent No.1. The matter
was again taken to the High Court against the order of the
learned Subordinate Judge. The Respondent No.1 filed
s R.F.A.Nos.75 of 2004 and 491 of 2006 in the Kerala High Court
and the same were allowed by the learned Single Judge
holding that even if the plaintiff failed to prove the oral gift in
his favour, he could not be non-suited, since he alone was
having the rights over the assets of Meeralava Rawther in view
c of the various Deeds of Relinquishment executed by the other
sons and daughters of Meeralava Rawther.

8. Being aggrieved by the judgment of reversal passed by
the learned Single Judge of the High Court, the petitioners
herein in the four Special Leave Petitions have questioned the
D validity of the said judgment.
'
•
9. Appearing for the Petitioners in both the SLPs, Mr. M.T.
George, learned Advocate, submitted that the impugned
judgment of the High Court was based on an erroneous
E understanding of the law relating to relinquishment of right in a
property by a Mohammedan. It was submitted that the High
Court had failed to truly understand the concept of spes
successionis which has been referred to in paragraph 54 of
Mulla's "Principles of Mahomedan Law", which categorically
F indicates that a Muslim is not entitled in law to relinquish an •
expected share in a property. Mr. George submitted that the
said doctrine was based on the concept that the Mohammedan
Law did not contemplate inheritance by way of expectancy
during the life time of the owner and that inheritance opened
G to the legal heirs only after the death of an individual when right
to the property of the legal heirs descended in specific shares.

""
Accordingly, all the Deeds of Relinquishment executed by the
siblings, except for the Respondent No.1, were void and were
not capable of being acted upon. Accordingly, when succession
H opened to the legal heirs of Meeralava Rawther on his death,
--
. +
SHEHAMMAL v. HASAN KHANI RAWTHER AND
ORS. [ALTAMAS KABIR, J.]

each one of them succeeded to a specified share in his· estate.
727

A

10. It was also submitted that as a result, the finding of the
High Court in R.F.A.No.491 of 2006 that even if the story of oral
-+ .,,, gift set up by the plaintiff was disbelieved, he would still be
entitled to succeed to the entire estate of the deceased, on
B
account of the Deeds of Relinquishment executed by the other
legal heirs of Meeralava Rawther, was erroneous and was
liable to be set aside. Mr. George contended that the High Court
wrongly interpreted the decision of this Court in the case of
Gu/am Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554].
In the said decision, this Court held that the applicability of the
c
Doctrine of Renunciation of an expectant right depended upon
,,, the surrounding circumstances and the conduct of the parties
~
when such a renunciation/relinquishment was made. It was
J further held that if the expectant heir received consideration for
renouncing his expectant share in the property and conducted D
himself in a manner so as to mislead the owner of the property
from disposing of the same during his life time, the expectant
heir could be debarred from setting up his right to what he was
entitled. Mr. George submitted that the High Court overlooked
the fact that this Court had held that mere execution of a E
document was not sufficient to prevent the legal heirs from
• claiming their respective shares in the parental property.
-I
. '¥ '
11. Mr. George submitted that apart form the above, the
High Court allowed itself to be misled into accepting a "family F
arrangement" when such a contingency did not arise. The
transactions involving the separate Deeds of Relinquishment
executed by each of the heirs of Meeralava Rawther,
constituted an individual act and could not be construed to be
"f i: a family arrangement. Mr. George submitted that even if the
G
story made out on behalf of the Respondent No.1, that
Meeralava Rawther made each of his children execute Deeds
! of Relinquishment on their leaving the family house, is
· accepted, the same cannot by any stretch of imagination be
• said to be a family arrangement which had been accepted by
H
728 SUPREME COURT REPORTS [2011] 9 S.C.R.
-+
.,,,.
A all the legal heirs of Meeralava Rawther. Thus, misled into
accepting a concept of "family arrangement", the High Court
erroneously relied on the decision of the Allahabad High Court
in Latafat Hussain Vs. Bidayat Hussain [AIR 1936 All. 573),
Kochunni Kochu Vs. Kunju Pillai (1956 Trav - Co 217, \>-

B Thayyul/athil Kunhikannan Vs Thayyullathil Ka/liani And Ors. '
[AIR 1990 Kerala 226] and Hameed Vs Jamee/a (2004 (1)
KLT 586), where it had been uniformly held that when there is
a family arrangement binding on the parties, it would operate
as estoppel by preventing the parties from resiling from the
same or trying to revoke it after having taken advantage of such
c arrangement. Mr. George submitted that having regard to the
doctrine of spes successionis, the concept of estoppel could
not be applied to Muslims on account of the fact that the law of -,.
inheritance applicable to Muslims is derived from the Quran, ..
which specifies specific shares to those entitled to inheritance
D
and the execution of a document is not sufficient to bar such
inheritance. Accordingly, renunciation by an expectant heir in
the life time of his ancestor is not valid or enforceable against
him after the vesting of the inheritance. Mr. George reiterated
that the Deeds of Relinquishment between A2 to A6 could not
E be treated as a "family arrangement" since all the members of
the family were not parties to the said Deeds and his position
not having altered in any way, the Respondent No.1 is not •
,.
entitled to claim exclusion of the other heirs of Late Meeralava •
Rawther from his estate.
F
12. In this regard, Mr. George also drew our attention to
Section 6 of the Transfer of Property Act, 1882, where the
concept of spes successionis has been incorporated. It was
pointed out that Clause (a) of Section 6 is in pari materia with
G the doctrine of spss successionis, as incorporated in paragraph
,.
'l
54 of Mulla's "Principles of Mahomedan Law" and provides that
the chance of a person succeeding to an estate cannot be
transferred.
13. In view of his aforesaid submissions, Mr. George
H
SHEHAMMAL v. HASAN KHANI RAWTHER AND 729
.,,. + ORS. [ALTAMAS KABIR, J.]

submitted that the impugned judgment and decree of the High A
Court was liable to be set aside and that of the learned
Subordinate Judge was liable to be restored.

~·
14. Mr. V. Giri, learned Advocate, who appeared for the
,. Respondent No.1, urged that in view of the three-Judge Bench
B
decision in Gu/am Abbas's case (supra), it was not open to
the Petitioner to claim that the Doctrine of Estoppel would not
be applicable in the facts of this case. Mr. Giri submitted that
the view expressed in Gu/am Abbas's case (supra) had earlier
been expressed by other High Courts to which reference has
been made hereinbefore. He urged that all the Courts had c
taken a consistent view that having relinquished his right to
further inheritance, a legal heir could not claim a share in the
.. ~·
property once inheritance opened on the death of the owner of
.... the property .
D
15. Mr. Giri contended that any decision to the contrary
would offend the provisions of Section 23 of the Indian Contract
Act, 1872, as being opposed to public policy. Mr. Giri urged
that the principles of Mahomedan law in relation to the law as
incorporated in the Transfer of Property Act and the Indian E
Contract Act, had been considered in great detail by the three-
._ Judge Bench in Gu/am Abbas's case (supra). Learned counsel
"""!
pointed out that on a conjoint reading of Section 6 of the
~
Transfer of Property Act and paragraph 54 of Mulla's "Principles
of Mahomedan Law" it would be quite evident that what was F
sought to be protected was the right of a Mohammedan to the
chance of future succession to an estate. Learned counsel
submitted that neither of the two provisions takes into
consideration a situation where a right of spes successionis
. ):
is transferred for a consideration. Mr. Giri submitted that in G
Gu/am Abbas's case (supra) the said question was one of the
important questions which fell for consideration, since it had a
direct bearing on the question in the light of Section 23 of the
Indian Contract Act, 1872. Mr. Giri submitted that the bar to a
transfer of a right of spes successionis is not an absolute bar
H
730 SUPREME COURT REPORTS [2011] 9 S.C.R.
~~
A and would be dependent on circumstances such as receipt of
consideration or compensation for relinquishment of such
expectant right in future. Mr. Giri urged that the Special Leave
Petitions were wholly misconceived and were liable to be
dismissed.
~
B
16. From the submissions made on behalf of the "
respective parties and the facts of the case, three questions
of importance emerge for decision, namely:-

(i) Whether in view of the doctrine of spes
c successionis, as embodied in Section 6 of the
Transfer of Property Act, 1882, and in paragraph
54 of Mulla's "Principles of Mahomedan Law", a
Deed of Relinquishment executed by an expectant ~

heir could operate as estoppel to a claim that may ~

D be set up by the Executor of such Deed after ....
inheritance opens on the death of the owner of the
property?
(ii) Whether on execution of a Deed of Relinquishment
after having received remuneration for such future
E
share, the expectant heir could be estopped from
claiming a share in the inheritance?

(iii)
.
Can a Mohammedan by means of a Family r
Settlement relinquish his right of spes successionis '(

F when he had still not acquired a right in the
property?
17. Chapter VI of Mulla's "Principles of Mahomedan Law"
deals with the general rules of inheritance under Mohammedan
G law. Paragraph 54 which falls within the said Chapter relates II
to the concept of transfer of spes successionis which has also :\
been termed as "renunciation of a chance of succession". The
said paragraph provides that the chance of a Mohammedan
heir-apparent succeeding to an estate cannot be said to be
the subject of a valid transfer or release. The same is included
H
SHEHAMMAL v. HASAN KHANI RAWTHER AND 731
~
ORS. [ALTAMAS KABIR, J.]
+
in Section 6 of the Transfer of Property Act and the relevant A
portion thereof, namely, clause (a) is extracted below:-

"6. What may be transferred.- Property of any kind may
be transferred, except as otherwise provided by this Act
. ,.. or by any other law for the time being in force.
8
(a) 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."
c
The provisions of Section 6(a) have to be read along with
Section 2 of the Act, which provides for repeal of Acts and
saving of certain enactments, incidents, rights, liabilities etc. It
specifically provides that nothing in Chapter II, in which Section
6 finds place, shall be deemed to affect any rule of D
Mohammedan Law.

18. lnspite of the aforesaid provisions, both of the general
law and the personal law, the Courts have held that the fetters
imposed under the aforesaid provisions are capable of being
removed in certain situations. Two examples in this regard are E

.., (i) When an expectant heir willfully does something
which has the effect of attracting the provisions of
Section 115 of the Evidence Act, is he estopped F
from claiming the benefit of the doctrine of spes
successionis, as provided for under Section 6(a)
of the Transfer of Property Act, 1882, and also
under the Mohammedan Law as embodied in
paragraph 54 of Mulla's "Principles of Mahomedan G
t Law"?
(ii) When a Mohammedan becomes a party to a family
arrangement, does it also entail that he gives up
his right of spes successionis.
H
732 SUPREME COURT REPORTS [2011] 9 S.C.R.

A The answer to the said two propositions is also the answer
to the questions formulated hereinbefore in paragraph 16.

19. The Mohammedan Law enjoins in clear and
unequivocal terms that a chance of a Mohammedan heir-
B apparent succeeding to an estate cannot be the subject of a
valid transfer or release. Section 6(a) of the Transfer of Property
Act was enacted in deference to the customary law and law of
inheritance prevailing among Mohammedans.
/

20. As opposed to the above, are the general principles
C of estoppel as contained in Section 115 of the Evidence Act
and the doctrine of relinquishment in respect of a future share
in property. Both the said principles contemplated a situation
where an expectant heir conducts himself and/or performs i
certain acts which makes the two aforesaid principles
D applicable inspite of the clear concept of relinquishment as far ...
as Mohammedan Law is concerned, as incorporated in
Section 54 of Mulla's "Principles of Mahomedan Law". Great
reliance has been placed by both the parties on the decision
in Gu/am Abbas's case (supra). While dealing with a similar
E situation, this Court watered down the concept that the chance
of a Mohammedan heir apparent succeeding to an estate
cannot be the subject of a valid transfer on lease and held that
renunciation of an expectancy in respect of a future share in a
property in a case where the concerned party himself chose to
F depart from the earlier views, was not only possible, but legally
valid. Referring to various authorities, including Ameer Ali's
"Mohammedan Law", this Court observed that "renunciation
implies the yielding up of a right already vested". It was
observed in the facts of that case that during the lifetime of the
G mother, the daughters had no right of inheritance. Citing the
decision in the case of Mt. Khannum Jan vs. Mt. Jan Bibi
[(1827) 4 SDA 210] it was held that renunciation implies the
yielding up of a right already vested. Accordingly, renunciation
during the mother's lifetime of the daughters' shares would be
R null and void on the ground that an inchoate right is not capable
SHEHAMMAL v. HASAN KHANI RAWTHER AND 733
}
"f"' ORS. [ALTAMAS KABIR, J.)
of being transferred as such right was yet to crystallise. This A
Court also held that "under the Muslim Law an expectant heir
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". It was observed by the
"' learned Judges that the Contract Act and the Evidence Act B
would not strictly apply since they did not involve questions
arising out of Mohammedan Law. This Court accordingly held
that the renunciation of a supposed right, based upon an
expectancy, could not, by any test be considered "prohibited".

21. This Court ultimately held that the binding force of the
c
renunciation of a supposed right, would depend upon the
attendant circumstances and the whole course of conduct of
which it formed a part. In other words, the principle of an
equitable estoppel far from being opposed to any principle of
Mohammedan Law, is really in complete harmony with it. D

22. On the question of family arrangement, this Court
observed that though arrangements arrived at in order to avoid
future disputes in the family may not technically be a settlement,
a broad concept of a family settlement could not be the answer E
to the doctrine of spes successionis .
.
23. There is little doubt that ordinarily there cannot be a
-- ~
transfer of spes successionis, but in the exceptions pointed out
by this Court in Gu/am Abbas's case (supra), the same can be
F
avoided either by the execution of a family settlement or by
accepting consideration for a future share. It could then operate
as estoppel against the expectant heir to claim any share in
the estate of the deceased on account of the doctrine of spes
successionis. While dealing with the various decisions on the
subject, which all seem to support the view taken by the learned G
Judges, reference was made to the decision of Chief Justice
Suleman of the Allahabad High Court in the case of Latafat
Hussain Vs. Hidayat Hussain [AIR 1936 All 573), where the
question of arrangement between the husband and wife in the
_ n~t1,1re of a family settlement, which was binding on the parties, H
734 SUPREME COURT REPORTS [2011] 9 S.C.R.
~
•
A was held to be correct in view of the fact that a presumption
would have to be drawn that if such family arrangement had not
been made, the husband could not have executed a deed of
Wakf if the wife had not relinquished her claim to inheritance.
It is true that in the case of Mt. Khannum Jan (supra), it had \,.

B been held by this Court that renunciation implied the yielding ..
up of a right already vested or desisting from prosecuting a
claim maintainable against another, and such renunciation
during the lifetime of the mother of the shares of the daughters
was null and void since it entailed the giving up of something
c which had not yet come into existence.
24. The High Court after considering the aforesaid views
of the different jurists and the decision in connection with the !
doctrine of relinquishment came to a finding that even if the ,/

provisions of the doctrine of spes successionis were to apply, .I._
D by their very conduct the Petitioners were estopped from
claiming the benefit of the said doctrine. In this context, we may
refer to yet another principle of Mohammedan Law which is
contained in the concept of Wills under the Mohammedan Law.
Paragraph 118 of Mulla's "Principles of Mahomedan Law"
E embodies the concept of the limit of testamentary power by a
Mohammedan. It records that a Mohammedan cannot by Will
dispose of more than a third of the surplus of his estate after .-/

payment of funeral expenses and debts. Bequests in excess .. ~

of one-third cannot take effect unless the heirs consent thereto
F after the death of the testator. The said principle of testamentary
disposition of property has been the subject matter of various
decisions rendered by this Court from time to time and it has
been consistently stated and reaffirmed that a testamentary
disposition by a Mohammedan is binding upon the heirs if the
G heirs consent to the disposition of the entire property and such ~
'
consent could either be express or implied. Thus, a
Mohammedan may also make a disposition of his entire
property if all the heirs signified their consent to the same. In
other words, the general principle that a Mohammedan cannot
H by Will dispose of more than a third of his estate after payment
SHEHAMMAL v. HASAN KHANI RAWTHER AND 735
ORS. [ALTAMAS KABIR, J.J
. -;-.
~
of funeral expenses and debts is capable of being avoided by A
the consent of all the heirs. In effect, the same also amounts to
a right of relinquishment of future inheritance which is on the
one hand forbidden and on the other accepted in the case of
testamentary disposition. Having accepted the consideration
.. for having relinquished a future claim or share in the estate of
the deceased, it would be against public policy if such a
B
"' claimant be allowed the benefit of the doctrine of spes
successionis. In such cases, we have no doubt in our mind that
the principle of estoppal would be attracted.

25. We are, however, not inclined to accept that the c
methodology resorted to by Meeralava Rawther can strictly be
said to be a family arrangement. A family arrangement would
necessarily mean a decision arrived at jointly by the members
of a family and not between two individuals belonging to the
""' _, family. The five deeds of relinquishment executed by the five D
sons and daughters of Meeralava Rawther constitute individual
agreements entered into between Meeralava Rawther and the
expectant heirs. However, notwithstanding the above, as we
have held hereinbefore, the doctrine of estoppal is attracted so
as to prevent a person from receiving an advantage for giving E
up of his/her rights and yet claiming the same right
subsequently. In our view, being opposed to public policy, the
._ heir expectant would be estopped under the general law from
,. ..
claiming a share in the property of the deceased, as was held
in Gu/am Abbas's case (supra). F
26. We are not, therefore, inclined to entertain the Special
Leave Petitions and the same are accordingly dismissed, but
without any order as to costs.
D.G. Special Leave Petitions dismissed. G