[ Shehammal v. Hasan Khani Rawther & Ors., AIR 2011 SC 3609]
One Mr. Meeralava Rawther died in 1986, leaving behind him surviving three sons and three daughters, as his legal heirs. At the time of his death he possessed 1.70 acres of land which he had acquired on the basis of a partition effected in the family. 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 the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof.
It is the specific case of the parties that Meeralava Rawther helped all his children to settle down in life. The youngest son, Hassan Khani Rawther, the respondent No. 1, was staying with him even after his marriage, while all the other children moved out from the family house. The case made out by the respondent No. 1 is that 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, except the respondent No. 1, Hassan Khani Rawther. The respondent No. 1, Hassan Khani Rawther filed a suit for seeking declaration of title, possession and injunction in 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.
The issue arose as to 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?
The Court observed that Chapter VI of Mulla’s ‘Principles of Mahomedan Law’ deals with the general rules of inheritance under Mohammedan Law. 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 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.
As opposed to the above 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 principles contemplated a situation where an expectant heir conducts himself and/ or performs certain acts which makes the two aforesaid principles applicable in spite of the clear concept of relinquishment as far as Mohammedan Law is concerned.
The Court further observed that there cannot be a transfer of spes successionis, but the exceptions are pointed out by this Court in Gulam Abbas v. Haji Kayyum Ali & Ors., AIR 1973 SC 554, the same 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 successionis. While dealing with the various decisions on the subject, reference was made to the decision of the Allahabad High Court in the case of Latafat Hussain v. Hidayat Hussain, (AIR 1936 All 573), where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, 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. Thus, 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.
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 claimant is allowed the benefit of the doctrine of spes successionis. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, the doctrine of estoppel 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 be estopped under the general law from claiming a share in the property of the deceased.
