GULAM ABBAS Vs. HAJI KAYYUM ALI

JUDGEMENT

(1.) This is a Defendant's appeal by Special Leave against the Judgment and decree of the High Court of Madhya Pradesh allowing a second appeal in a partition suit between members of a family governed by Muslim law. The Defendant-Appellant and the Plaintiff-Respondent are both sons of Kadir Ali Bohra who died on 5-4-1952 leaving behind five sons and a daughter and his widow as his heirs. It appears that Kadir Ali had incurred debts so heavily that all his property would have been swallowed up to liquidate these. Three of his sons, namely, Ghulam Abbas, Defendant No. 1, Abdullah, Defendant No. 2, and Imdad, Defendant No. 3, who had prospered, came to his rescue so that the property may be saved. But, apparently, they paid up the debts only in order to get the properties for themselves to the exclusion of the other two sons, namely Kayyumali, Plaintiff-Respondent, and Nazarali, Defendant No. 4, who executed, on 10-10-1942, deeds acknowledging receipt of some cash and moveable properties as consideration for not claiming any rights in future in the properties mentioned in the deeds in which they gave up their possible rights in future. The executant of each deed said :

(2.) The first appellate Court, the final Court on questions of fact, recorded the following findings, after examining the whole set of facts before it, to conclude that the plaintiff and defendant No. 4 were estopped from claiming their shares in the inheritence :

(3.) The High Court reproduced the passage, quoted above, from the judgment of the First Appellate Court, with out 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 to the Plaintiff and Defendant No. 4 for the relinquishment of their future possible rights of inheritance. It proceeded on the assumption that, if 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. It held that the rule of Muslim Personal law on the subject has the same effect as Section 6 (1) of the Transfer of Property Act which lays down :