# GULAM ABBAS v. HAJJ KAYYUM ALI & ORS

- **Citation:** [1973] 2 S.C.R. 300
- **Court:** Supreme Court of India
- **Decided:** 1972-09-18
- **Case number:** Civil Appeal No. 2134 of 1970
- **Bench:** A. N. Grover, M. H. Beg, A. K. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gulam-abbas-v-hajj-kayyum-ali-ors-5850
- **Pages:** 10

## Headnote

Maho11u•tlun
Law-J::.Hoppe/-Execution
of
deeds
acknowledging
receipt of rnluable consideratwn and relinquishing future possibk rights
of inheritance in the properties of father~n fa1her's deatli executants
filing suit for partition of properties comprised in
deed-Applicability
of the rule of estoppel-Evidence Act, 1872-Section llS,
Muslim jurisprudence, where theology and moral concepts are found
sometimes mingled with secular utilitarian legal prtnciples, qontains a very
elaborate theory of acts which are good (because they proceed
from
ha11na), those which arc bad (because thcv exhibit 'qubuh'), and those
which are neutral per se. It classifies them according to varying degrees
of approval or disapproval attached to them.
The renunciation of a sup·
posed right, based upon an expect·ancy, "ould not, by any test found there,
be considered "prohibited".
The binding force in future of such a renunciation would, even aecording to strict Muslim jurisprudence, depend
upon th' 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 be found, on
investigation, to be completely in consonance with it. [306 F]
Abdul Rahim, Muhanimedan 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 contribute anything towards the clearing up of the debts of their father executed deeds acknowledging receipt of cash and moveable properfies
as
consideration for not claiming any rights in future in the properties mentioned in the deeds.
On K's death the two sons who had· executed the
deeds iustituled 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 sqns were ectopped 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 trans·
fer of his right of inheritance by a inuslim heir, an estoppel would have
op.crated against the respondent on the findings given and held that :he
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 SU(."ceeding to an estate could not be the subject of a va1id
transfer or 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.J.R. 1959 Mad. 131) in preference
to the view
adopted
by the
Allahabad· High Court in Latafat Hussain v. Bidayat Hussain (A.J.R.
1936 All. 573.)
Allc>wing the appeal and setting aside the judgment and decree of the
High Court,
HELD: Upon the facts and circumsta1noes in tllj' case found by the
courts below, the two sons could not, when rights of inheritance vested
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GULAM ABBAS V. HAJI KAYYUM (Beg, /.)
301
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 wbioh do.es 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 concu• with the view of the M~dras High Court in Abdul Kafoor's case
that a renunciation of an expe'ctancy, as a purported but legally ineffective
transfer, is struck

## Text

300
GULAM ABBAS
v.
HAJJ KAYYUM ALI & ORS.
September 18, 1972
[A. N. GROVER, M. H. BEG AND A. K. MUKHERJEA, JJ.]
Maho11u•tlun
Law-J::.Hoppe/-Execution
of
deeds
acknowledging
receipt of rnluable consideratwn and relinquishing future possibk rights
of inheritance in the properties of father~n fa1her's deatli executants
filing suit for partition of properties comprised in
deed-Applicability
of the rule of estoppel-Evidence Act, 1872-Section llS,
Muslim jurisprudence, where theology and moral concepts are found
sometimes mingled with secular utilitarian legal prtnciples, qontains a very
elaborate theory of acts which are good (because they proceed
from
ha11na), those which arc bad (because thcv exhibit 'qubuh'), and those
which are neutral per se. It classifies them according to varying degrees
of approval or disapproval attached to them.
The renunciation of a sup·
posed right, based upon an expect·ancy, "ould not, by any test found there,
be considered "prohibited".
The binding force in future of such a renunciation would, even aecording to strict Muslim jurisprudence, depend
upon th' 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 be found, on
investigation, to be completely in consonance with it. [306 F]
Abdul Rahim, Muhanimedan 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 contribute anything towards the clearing up of the debts of their father executed deeds acknowledging receipt of cash and moveable properfies
as
consideration for not claiming any rights in future in the properties mentioned in the deeds.
On K's death the two sons who had· executed the
deeds iustituled 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 sqns were ectopped 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 trans·
fer of his right of inheritance by a inuslim heir, an estoppel would have
op.crated against the respondent on the findings given and held that :he
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 SU(."ceeding to an estate could not be the subject of a va1id
transfer or 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.J.R. 1959 Mad. 131) in preference
to the view
adopted
by the
Allahabad· High Court in Latafat Hussain v. Bidayat Hussain (A.J.R.
1936 All. 573.)
Allc>wing the appeal and setting aside the judgment and decree of the
High Court,
HELD: Upon the facts and circumsta1noes in tllj' case found by the
courts below, the two sons could not, when rights of inheritance vested
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GULAM ABBAS V. HAJI KAYYUM (Beg, /.)
301
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 wbioh do.es 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 concu• with the view of the M~dras High Court in Abdul Kafoor's case
that a renunciation of an expe'ctancy, as a purported but legally ineffective
transfer, is struck by section 23 of the Indian Contract Act. As it would
he 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 sin\ple contract which could only operate in future,
ii was c~rtainly not intended to bring about an immediate transfer which
was nil that the rule of muslim law i:r.validated.
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 assertiOID of
n right to property when that right actually, came into being. An cquit·
able estoppel operates, if its elements are established as a rule of cvi·
Jenee preventing the •ssertions of rights which
may
otherwise
exist.
[304 D]
While the Madras view is based upon the erroneous assumption that
'3 renunciatio.rr of a claim to inherit in future is in itself i1\cga\ or prohibited by Muslim law, tho view of the Allahabad High Court in Lara/at
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 invwid aoo void", correctly lays down that such an aban·
donment rilay 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 H11ssai11 v. Bidayat H11ssai11, A.LR. 1936 All. 573, approved.
View contra in Abdul Ka/oar v. Abdul Razack, A.I.R. 1959 Mad.131
and Asa Beevi v. Kar11ppa11, (1918) 41 Madras l.L.R. 365, disapproved.
Ameer Ali's Mahontedan Lau1, Vol. II. Hurn1oot-Ool-Nisa Beg11111 v.
Allalidis Khan, (1871) 17 W.R.P.C. 108 and Mohammad Ali Klum v.
Nisar Ali Khan, A.I.R. 1928 Oudh 67,, referred to.
(Since the Court was of opinion that lhere was nothing in law to
bar the application of the principle of estoppel contained in section 115
of the Evidence Act up0n 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
11
"famih
settlement" in a technical sense.)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2134 of
1970.
Appeal by special leave from the judgment and order dated
March 5, 1970 of the Madhya Pradesh High Court in (Indore
Bench) in Second Appeal No. 618 of 1964.
K. Rajendra Chowdhry, for the appellant.
P. C. Bhartari, D. N. Mishra and /, B. Dadachanji, for respondent No. 1.
302
SUPREME COURT REPORTS
[1973] 2 s.c.R.
The Judgment of the Court was delivered by
BEG, J. This is a Defendant's :ippeal by Special Leave against
the judgment and decree of the High Court of Madhya Pradesh
allowing .a second appeal in a partition suit bjetween members of
a family governed by Muslim Jaw. The Defendant-Appellant and
the Plaintilf-Respondent are both sons of Kadir Ali Bohra who
died 011 5-4-1952 'leaving behind five sons, a daughter and his
widow as his heirs. It a!Jpears that Kadir Ali had incurred debtS
~o heavily that all his property would have been swallowed up to
liquidate these. Three of his sons, namely, Ghulam Abbas, Defendant No. l, Abdullah, Defendant No. 2, and Imdad, Defendant
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. No. 3, who hdad .. prospered, came to his re~cdue so hthatdthbc prope
1
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may be save . But, apparently, they pa1 up t e e ts oniy m
order to get the properties for themselves to the .exclusion of the
other two som, namely, Kayyumali, Phiintiff-Respondent, and
Nazarali, Defendant No. 4, who executed, on 10-J0-1942, deeds
acknowledging receipt of some cash and moveable· properties as
consideration for not claiming any rights in future in the. properD
ties 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. l
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
E
by disposition of property, neither of these two raised his. little
F
finger to object. The only question before us now is whether
the Plaintiff and Defendant No. 4 are estopjJed by their declarations and conduct and silence from claiming their shares in the
properties covered by these deeds.
The first Appellate Court, the final court on quesiions of fact,
recorded the f'ollowing findings, after examining the whole set of
G
,
facts before it, to conclude that the plaintiff and defn1dant 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
H
.No. l, 2 and 3 had with their labour and money
straightened the status of his father Kadar Ali and !lad
cleared up -the debts which would have devoured the
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Gl'LAM ABBAS V. HA.Ji KAYYUM (Beg, /,)
303
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. l, .2 and .3 to believe that the
plaintiff would not daim 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 the Plaintiff and Defendant No. 4 for the relinquishment ·of their future possible rights of inheritance. It proceeded
on the assumption that, i.f 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.
Tt 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 cl:iance 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 Mahomedan 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 : Mul!a's Principles of
Mahomedan Law-17th Bin. ss 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
P.nnc;ple that no estoppel can anse against statute to what it considered to be. an estoppel put forward against a rule of Mahomedan law.
Th~ High Court had relied on a decision of the Madras High
Court m Abdul Kafoor v. Abdul Razack(1), which
had been
(I) A.T.R. 1959 Mad. r. 131.
304
SUPREME COURT REPORTS
[1973] 2 S.C.R.
followed by the Kerala High Court without giving fresh reaso11:s,
in Va!onhivil K1111chi v. Kengayil Pattikavil Kunbi Avulla(') in
preference to the vie"'. adopted by_ th_~ Allahabad High Court in
Latafat Hrusain v. Hidayat Hussam(·) followed by the Travancore Cochin High Court in K~chunni Kach_u Muhamm_e~ v. Kunju
Pillai Muhammed(") The prmcipal quesllon for dec1S1on before
us is whether the Madras or the Allahabad High Court view is
correct.
The Madras High Court, in Abdul Kafoor's case (supra) had
specifically dissented from the Allahabad view in Latafat Hussain's
case (supra) on the ground that, if an estop_pel ~as allowed to be
pleaded as a defence, on the strength of rellnqmshment of a spes
succe.1:1·io11is for consideration, the effect could be to permit the provisions of Mahomedan 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 Mahomedan law,
which c\Q!!S not recognise a purported transfer of a spes successionis as a legally valid transfer at all, is nnt to prohi\iit 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 6Ca)
of
Transfer of Property Act is meant to do.
Its purpose could not
be to protect those wno receive consideration for what they do
not immediately have so as to be ab!~ 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 transfers
w 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 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. H
there was no "transfer" of property at all, which was the correct
po~ition, 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 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 propetry when that
right actually came into being.
An equitable estoppel operates.
if its ~lements 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
m
A.LR. 196~ Kcrala p. 200
icl A IR. 19)6 All. 57).
(~) A.T.R. 195r1 Tra\·rtnc0rc 217.
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GULAM ABBAS v. HAJI KAYYUM (Beg, J.)
305
High Court in Asa Becvi v. Karuppan(')
where Macnaghten's
"Principles and Precedents of Moohumudan Law", Sir Roland
Wilson's Dige;t of 'Ang10-Mohhamadan Law" P. 260, and Ameer
Ali's "Mohommedan Law" (Vol. II, third edition, p. 50-51),
and Tyabji's .. Muslim Law~· .have been referred to in support of
the conclusion that ".here is" a large preponderance of authority
in favour of the view that a transfer or renuniciation of the right
of inheritance before that right vests is
prohibited under · the
Mahomedan Law". The whole discussion of the principle in the
body of the judgment, however brings out that the real reason is
not a prohibition but that there cannot be a renunciation of a right
which is incohate 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 vivas.
Sir Roland Wilson, in his "Anglo Mohhamadan Law" ( p.
260, paragraph 208) states the position thus :-
. "For the sake of those readers who are familiar with
the joint ownership of father and son according to the
most widely prevalent school of Hindu Law, it is perhaps
desirable to state explicitly that in Muhammadan, as in
Roman and English Law, nemo est heres viventis-a
Jiving person has no heir.
An heir-apparent or presumptive has no such reversionary interest
as would
enable him to object to any sale or gift made by the
owner in possession; see Abdul Wahid, LR. 12 I.A.,
91, and 11 Cal. 597 All., 456 (1885) which was followed in Hasan Ali, 11 All. 456 (1889). The converse
is also true : a renunciation by an ·expectant heir in the
lifetime of his ancestor is not valid,
or enforceable
against him after the vesting of the inheritance". •
This is a correct statement, so far as it goes, of the law, because
a bare renunciation of an expectation to inherit cannot b~nd the
expectant heir's conduct in future.
But, if the expectant heir
goes further and receives consideration and so conducts himself as
to mislead an owner into not making dispositions of his property
inter vivas the expectant heir could be debarred from setting up
his right when it does unquestionably vest in him. In other words,
the principle of estoppel remains untouched by this statement.
As the Madras Full Benci pointed out, the subject was discussed more fully in Ameer Alt's "Mohammedan Law" (Vol. II)
than elsewhere. There we find the reason for or the object underlying the rule. It is that there is nothing to renounce in such a
case because an expectancy remains at most before it has mate-
(1) [1918] (41 Madras) l.L R. 36;_
306
SUPREME COURT REPORTS
[1973] 2 s.c.R.
rialized only an "incohate right". It is in this light· that the
following observations in Hurmoot-Ool-Nisa Begum v. Allehdia
K h@, ( 1 ) is explained by Ameer Ali :
"According to the Mahomedan Law the right of inheritance may be renounced and such renunciation need
not be express t1ut may be implied from the ceasing or
desisting from
prosecuting
a
claim
IJ\aintainab)e
against another."
Ameer Ali explained, citing an opinion of the law officers,
given in Khanwn hr, v. Jan Bibi;(')
"Renunciation implies the yielding up of a right
rJrcady ve>ted, or the ceasing or desisting from prosecuting a claim
maintainable . against another.
It is
evident that, during the -life-time of the mother the
daughters have no right of inheritance and 1heir claim
on that account is not maintainable against any ·person
during her life-time.
It follows, therefore, that this renunciation during the mother's life-time of the daughters·
shares is null and void it bBing in point of fact giving up
that which had no existence."
In view of the clear exposition of the reason for the rule containecl in the authorities relied upon by the Full Bench of the
Madras High Court in Asa Beevi's case (supra), we think that it
described, by oversight, a rule based on the disability of a person
to trans.fer what he has not got as a rule of prohibition enjoined
by Moham.edan Law.
The use of the word ''prohibited" by the
Full Bench does not really bring out the object or character of
the rule as explained above.
It may be mentioned here that 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 'hasna'), those
w:1ich nre bad (because they exhibit "qubuh"), and those whi~h
ar~ neutral per se.
It classifies
them
according to varying
degrees of approval or disapproval attached to them (see Abdur
Rahim\ "Muhammadan Jurisprudence" P. 105). The renunciation of a supposed right, based upon an expectancy, could not,
by any ·test found there, be considered "prohibited". The binding
force in future C·~ such a renunciation would, even according to
stric! 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 an equitable estoooel, far from
being opposed to any principle of Muslim law will be found, on
investigation. to be completely in consonance with it.
(I) [1871] 17 W.R.P.C. 108
(2) (1827] 4 S.D.A. Rer. 210.
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GULAM ABBAS V. HAJI KAYYUM (Beg, J.)
307
As al;eady indicated, 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, expressed by Suleman, C.J., in
Latafat Hussain's case (supra) while fully recognising that "under
the Mahomedan law relinquishment by an heir who has no
interest• in the life-time of his ancestor is invalid and void", correctly Jays down that such an abandonment 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
accr·ued.
A(ter considering several decisions, including the Full
Bench of the Madras High Court in Asa Beevi's case (supra)
Suleman, C.J., observed at page 575 :
"The que;tion of estoppel is really a question arising under the Contract A~t and the Evidence Act, and is
not a question strictly arising under the Mahomedan
-Law."
He pointed out (at page 575-576) :
"It has been held in this Court that contingent reversioners can enter into a contract for consideration
which may bie held binding on them ;n case they actually succeed to the estate : See 19 A.L.J. 799, and . 21
A.L.J. 235.
It was...pointed out in 24 A.L.J. 873. at
pp. 876-7, that although a reversionary right cannot be
the subject of a transfer, for such a transfer is prohibited by s. 6, T.P. Act, there was nothing to prevent a reversioner from so acting as to estop himself by his own
conduct from subsequently claiming a property to which
he may succeed. Among other cases
reliancJ: was
placed on the pronquncement of their Lordships of the
Privy Council in 40 All 487, where a reversioner was
held bound by a compromise to which he was a party."
Incidentally, we may observe that. in Mohammad Ali Khan
v. Bisar Ali Khan,(') the Oudh Chief Court
has relied upon
llurmoot-Od/-Nisa Begum's case (supra) to hold that '·according
to Mahomedan Law there may be renunciation of the right to
inheritance and such renunciation need not be express but may
be implied from the ceasing or desisting from
prosecuting
a
claim maintainabfo against another".
As we are ciearly of opinion that there is nothing in law to
bar the application of the principle of ~stoppel, contained in
Section 115 of the Evidence
Act,
against
the
plaintiff and
(I) A. I. R. J 928 Oudh 67.
308
SUPREME COURT REPORTS
[1973] 2 s.c.R.
Defendant No. 4, upon the totality of facts found by the final
Court of facts, which were apparently accepted by the High
Court, it is not necessary. for us to deal at length with the question whether the facts found could give rise to the inference of a
"family settlement" in a technical sense.
It is true that in Latafat Hussain's case
(supra)
Suleman,
C.J., had observed that the conclusion of the Subordinate Court,
that there had been an arrangement between a hu~band and a
wife "in the nature of a family seti!cment which is binding on
the plaintiff'', was correct.
This was held upon circumstances
which indicated that a husband· would not have executed a deed
B
of Wakf if the wife had not relinquished her claim to inheritance.
In other words, an arra[lgement which may avoid future disputes
C
in the family, even though it may not technically be a settleme.nt
or dcrinition of actually disputed claims,. was referred to broadly
as a "family arrangement". It was in this wide sense that, in the
case before us also, the first Appellate Court had considered the
whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as a "family
D
sc1tlemenf'.
As our law relating to family
arrangements
is
based on
English law, we may refer here to a definition of a family
arrangement in Halsbury's Laws of England, (1) where we find:
A family arrangement is an agreement between members of the
same family intended to be generally and reasonably for the E
benefit of the family either by compromisfug doubtful or disputed
rights or by preserving the family property or the
peace and
security of the family by avoiding litigation
or by saving
its
honour".
We also find there : The agreement may be implied
'from a long course of dealing, but it is more usual to eml:Jiociy or
to effectuate the agreement in a deed to which the term 'family
y
arrangemenr is applied." It is pointed out there : "Matters
which would be fatal to che validity of similar transactions between strangers are not obje•tions to the binding effect of family
arrangements."
As we have already indicated, it is enough for the decision
of this case that the plaintiff and defendant No. 4 were estopped
G
by their conduct, on an application of Section 115 Evidence
Act, from claiming any right to inheritance which accrued to
them, on their father's death, covered by the deeds of relinquishment for consideration, irrespective cf the question whether the
deeds could operate as legally valid and effective surrenders of
H
their spes succesrionis,
Upon the facts and circumstances
in
(1) H1lsb11ry's L1"'' of Engl;i.nd,
3rd.edn. Vol. 17.p.115.216.
GULAM ABBAS V. HAJI IQ.YYUM (Beg, /.)
309
A
the case found by the courts below we hold that the plaintiff and
defedant No. 4 could not, when rights of inheritance vested in
them at· the time of their father's death; claim these as such a
claim would be barred by estoppel.
The result is that we allow this appeal, set aside the. judgB ment and the decree of the High Court, and restore that of the
first Appellate Court. In the circumstances of this case, we order
that the parties will tear their own costs.
K.B.N.
Appeal al/owed.