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Case Comment: Shehammal v/s Hassan Khani Rawther

The case of Shehammal v. Hassan Khani Rawther and Ors.[1] 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.[2]

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
  • 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?

Law Applicable
The case is based on the following provisions of the Transfer of Property Act, 1882:
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
  • 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.[3]
     
  • Moreover, deeds of relinquishment are individual acts and cannot be treated as a family arrangement.
     
  • Lastly, execution of such deeds cannot be said to be family arrangements accepted by all the legal heirs of the individual.

Arguments On Behalf Of The Respondents
  • 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's Ruling
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 heirs.

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" .[4] 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.

Analysis
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.[5] This is in accordance with the maxim alienation rei prefertur juri accrescendi, which means that law prefers alienation to accumulation.[6] 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,[7] the Court held that section 43 is absolute and unqualified in its operation. It is not subject to section 6(a).

Application of the Rule of Equity in the Spes Successionis Rule in Mohammedan Law
In Sumsuddin Goolam Husein and another v. Abdul Husein Kalimuddin and another,[8] 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.

It observed:
"... 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.[9] 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,[10] the essential ingredients of a family arrangement were laid down as follows:
  1. The family arrangement should be bona fide and be made with the object to settle family disputes and rival claims;
  2. It should be made voluntarily, i.e., there must be an absence of fraud, coercion or undue influence;
  3. It may be in oral form in cases where there is no legal requirement of its registration;
  4. 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 registrable;
     
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 arrangement.

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.

Conclusion
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.

End-Notes:
  1. (2011) 9 SCC 223
  2. Hasan Khani Rawther v. Muhammed Rawther and Ors., RFA.No. 75 of 2004 (B) (Kerala High Court, October 18, 2007) para 6.
  3. AIR 1973 SC 554.
  4. Shehammal v. Hassan Khani Rawther and Ors., (2011) 9 SCC 223, para 36.
  5. The Transfer of Property Act, 1882 (4 of 1882), s. 6.
  6. Saxena, P.P., Property Law 75-76 (LexisNexis, Gurgaon, 3rd edn., 2020).
  7. AIR 1962 SC 847.
  8. ILR (1907) 31 Bom 165.
  9. (1973) 1 SCC 1.
  10. (1976) 3 SCC 119.


    Award Winning Article Is Written By: Ms.Tanvi Aggarwal

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