The case of Shehammal v. Hassan Khani Rawther and Ors
. deals with
the application of the spes successionis rule in Mohammedan law. Section 2 of
the Transfer of Property Act, 1882 provides that the provisions of Chapter II of
the Act do not apply to the Mohammedan law, where the rules of Mohammedan law
are contrary to them.
In this case, the Supreme Court noted the provision of section 6(a) of the Act
in the context of Mohammedan law and determined whether heirs apparent can
relinquish their rights of spes successionis under a family arrangement and
whether they are bound by the same.
Facts Of The Case
There was one Meeralava Rawther who had three sons (namely Muhammed Rawther,
Syed Muhammed Rawther and Hassan Khani Rawther) and three daughters (including
Shehammal and Amina). In this case, Hassan Khani Rawther, a government employee,
lived with his father Meeralava even after his marriage, while his siblings
moved out of Meeralava's house on or soon after their marriage. His five
siblings executed deeds of relinquishment relinquishing their claims to the
father's properties for some consideration.
Meeralava died intestate in 1986. He had six children as his legal heirs. On his
death, he owned 1.70 acres of land in Thodupuzha village.
As per the rules of succession in Mohammedan law, each son of Meeralava was
entitled to two-ninth of his property, while each daughter was entitled to
one-ninth share in the same. The Rawther family was governed by rules of
succession in Hanafi school.
In March 1992, Hassan Khani Rawther filed a suit before the Court of Subordinate
Judge of Thodupuzha praying for declaration of title, possession and injunction
in respect of the land belonging to his father. He claimed the whole property on
the basis of an alleged oral gift made to him by the father.
Subsequently, Muhammed Rawther filed a suit seeking an injunction against him in
respect of the father's land, while Shehammal filed a suit seeking partition of
the same. The Subordinate Judge of Thodupuzha, while trying the three suits
jointly, dismissed the suits filed by Hassan Khani Rawther and Muhammed Rawther
and decreed the suit filed by Shehammal.
The trial court dismissed the subsequent applications filed by Hassan Khani
Rawther seeking restoration of his suit and set aside the suit filed by
Shehammal. The Kerala High Court set aside the decrees in the suits filed by
Hassan Khani Rawther and Shehammal and remanded them back to the trial court for
a fresh decision based on merits. The trial court dismissed the suits because it
rejected the contention of the oral gift made by the deceased. On the first
appeal, the Kerala High Court reversed the decision of the trial court. The
petitioners, then, filed four special leave petitions before the Supreme Court.
Meanwhile, Hassankhan purchased the shares of Syed Muhammed Rawther and Muhammed
Rawther under two sale deeds.
Issues Before The Court
The issues before the Supreme Court, in this case, were as follows
The case is based on the following provisions of the Transfer of Property
- Whether a relinquishment deed executed by an expectant heir could
operate as an estoppel to a claim that may be set up by the executor of such
deed, after inheritance opens on the death of the owner of the property?
- Whether the doctrine of estoppel operates against the executor of a
relinquishment deed when he executed the deed after receiving remuneration?
- Whether under a family settlement, a Mohammedan can relinquish his right
of spes successionis when he had still not acquired any right in the
property of the owner?
Section 2 provides: and nothing in the second chapter of this Act shall be
deemed to affect any rule of Muhammadan Law.
Section 6(a) provides:
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.
Section 43 provides:
Where a person fraudulently or erroneously represents that he is authorised to
transfer certain immovable property, and professes to transfer such property for
consideration, such transfer shall, at the option of the transferee, operate on
any interest which the transferor may acquire in such property at any time
during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option.
Arguments On Behalf Of The Petitioners
Arguments On Behalf Of The Respondents
- Section 54 of Mulla's Principles of Mahomedan Law provides that a Muslim is not
entitled to relinquish an expected share in the property. It was contended on
the behalf of the petitioner that the high court had erred in the true
understanding of the rule of spes successionis mentioned in section 54. The
Section is pari materia with the rule of spes successionis envisaged in section
6(a) of the Transfer of Property Act, 1882.
- Further, it was contended that since the inheritance opened to legal heirs after
the death of a person, all the deeds of relinquishment were void. Thus, each
child of Meeralava succeeded to his property. The Mohammedan law did not
recognize inheritance by way of expectancy.
- Thus, there was an error in the decision of the Kerala High Court, since it had
upheld the claim of Hassan Khani Rawther on the basis of the deeds of
relinquishment, even though the oral gift alleged to be made in his favour had
not been accepted.
- The petitioner contended that the execution of a document is insufficient to
prevent legal heirs from shares their shares to the person's property. There was
an error in interpretation of the decision in Gulam Abbas v. Haji Kayyum Ali.
- Moreover, deeds of relinquishment are individual acts and cannot be treated as a
- Lastly, execution of such deeds cannot be said to be family arrangements
accepted by all the legal heirs of the individual.
The Supreme Court's Ruling
- It was contended that it is incorrect to say that the instant case was exempt
from the application of the doctrine of estoppel.
- The courts have taken a consistent view that a legal heir can be stopped from
claiming a share in the deceased's property if he or she relinquishes it due to
the application of the doctrine of estoppel.
- The bar on the transfer of spes successionis is not absolute in nature and
depending upon the circumstances of the case.
- Further, it was contended that the contrary would be opposed to public policy,
and thus contrary to section 23 of the Contract Act, 1872.
- Moreover, since the relinquishment is for a consideration, section 6(a) of the
Transfer of Property Act, 1882 and section 54 of Mulla's Principles of Mahomedan
Law do not apply as they do not take into account transfer of the spes
successionis right for a consideration, rather section 23 of the Contract Act,
1872 has a direct bearing on the transfer.
The Supreme Court observed that the five siblings of Hassan Khani Rawther and
their legal representatives could not claim their shares in Meeralava's
property. The Court agreed with the observation of this Court in Gulam Abbas
case that the heir apparent can be estopped from since it would otherwise be
opposed to the public policy. It held that the five deeds of relinquishment
amounted to five individual agreements between Meeralava and the expectant
This could not be said to be a family arrangement, since a family
arrangement means "a decision arrived at jointly by the members of a family and
not between two individuals belonging to the family" . Further, the Court
observed that the doctrine of estoppel applied in the case with the effect of
the prevention of the five siblings from claiming the share in the property
after receiving benefit for giving up their claims.
To come to this conclusion in the favour of Hassan Khani Rawther, the Court
referred to Chapter VI of Mulla's Principles of Mahomedan Law which deals with
the general rules of inheritance under Mohammedan law. Section 54 falls within
the Chapter as well. Due to section 2 of the Transfer of Property Act, 1882,
section 6 of the Act cannot be deemed to affect any provision of Mohammedan law.
As per the general law of Mohammed law, the spes successionis right cannot be
the subject of a valid transfer. However, the principle of estoppel as contained
in section 115 of the Indian Evidence Act, 1872 and the doctrine of
relinquishment are applicable to the cases where the conduct of the heir
apparent entail their application.
The Rule of Spes Successionis and the Doctrine of Estoppel: General Law
The general position of law is that property of every kind is transferable.
This is in accordance with the maxim alienation rei prefertur juri accrescendi,
which means that law prefers alienation to accumulation. Section 6(a) of the
Transfer of Property Act, 1872 prohibits a transfer of a chance of an heir
apparent of succeeding to a person's property or estate. Such type of transfer
is void ab initio. This rule is known as the rule of spes successionis.
The Transfer of Property Act, 1882 covers the doctrine of estoppel in section
43. The rule envisaged under section 43 is known as the doctrine of feeding the
grant by estoppel. It provides that:
In Jumma Masjid Mercara v. Kodimaniandra Deviah
, the Court held that section
43 is absolute and unqualified in its operation. It is not subject to section
Application of the Rule of Equity in the Spes Successionis Rule in Mohammedan
In Sumsuddin Goolam Husein and another v. Abdul Husein Kalimuddin and
another, the Bombay High Court came to a finding that there is nothing
contrary to the rule of spes successionis in Mohammedan law. The right cannot be
transferred, but the transfer can be validated on equitable principles.
"... if the chance of an heir-apparent is neither transferable nor releasable
according to Mahomedan Law, then, as it seems to me, it is only by an
application of the principle that equity considers that done which ought to be
done that such a chance can, if at all, be bound:"
Application of law in the instant case
The Supreme Court, in the instant case, followed the holding in Gulam Abbas v.
Haji Kayyum Ali. In this case, the Supreme Court had ruled that the
applicability of renunciation of the expectant right depends upon whether the
expectant heir goes beyond mere renunciation, he receives consideration and his
conduct misleads the owner. If it is so, then he is debarred from claiming such
right over the property. Further, the Court held in favour of applicability of
section 115 of the Indian Evidence Act, 1872.
In Kale and Others v. Deputy Director of Consolidation and Others
essential ingredients of a family arrangement were laid down as follows:
- The family arrangement should be bona fide and be made with the object to settle
family disputes and rival claims;
- It should be made voluntarily, i.e., there must be an absence of fraud, coercion
or undue influence;
- It may be in oral form in cases where there is no legal requirement of its
- It is required to be registered where the terms of the family settlement are
reduced to writing. Unlike a document, a mere memorandum is not compulsorily
The members who are parties to it must have an antecedent interest, right, or
even a possible claim which is acknowledged thereby under such arrangement. In
case, a person does not have a title, an antecedent title must be assumed if the
other party relinquishes all his interests in his or her favour; and
It is final and binding on the parties to the settlement in the case where it
provides for the settlement of bona fide disputes, present or future, of legal
claims, and such settlement is fair and equitable.
Moreover, in the case, it was observed by the Supreme Court that complete
estoppel applied against the parties who had taken benefit from a family
There is manifestly a fundamental difference between non-compliance with the
formal requisites prescribed for a transaction whereby alienable property is
transferred, and an attempt to accomplish a transfer of property which has been
rendered inalienable by a statutory provision.
Though the case scrutinized above relates to the property law governing Hindus,
the discussed elements describe the interpretation of the Indian courts on the
important concepts of the law.
I agree with the judgement in the instant case as well as the grounds on which
it is based. It is in consonance with the statutory provisions as well as the
view taken by the courts in different cases, whether referred to in the
judgement or not.
The judgement is commendable due to the following reasons:
It takes into consideration the public interest and prevention of expectant
heirs taking consideration for the right which they claim to relinquish as well
as the right so claimed to be relinquished;
It clarifies that a number of relinquishment deeds cannot constitute a family
settlement. It operates between two parties who are parties to such deed; and
It reiterates that when an expectant heir renounces his spes successions right
and receives consideration for the same, under Muslim law, he can be estopped,
on the basis of his conduct, from claiming the right when the right of
inheritance arises. The rule of equity applies in such cases.
- (2011) 9 SCC 223
- Hasan Khani Rawther v. Muhammed Rawther and Ors., RFA.No. 75 of 2004 (B)
(Kerala High Court, October 18, 2007) para 6.
- AIR 1973 SC 554.
- Shehammal v. Hassan Khani Rawther and Ors., (2011) 9 SCC 223, para 36.
- The Transfer of Property Act, 1882 (4 of 1882), s. 6.
- Saxena, P.P., Property Law 75-76 (LexisNexis, Gurgaon, 3rd edn., 2020).
- AIR 1962 SC 847.
- ILR (1907) 31 Bom 165.
- (1973) 1 SCC 1.
- (1976) 3 SCC 119.
Award Winning Article Is Written By: Ms.Tanvi Aggarwal
Authentication No: JL34841036478-15-0721