GULAM ABBAS Vs. HAZI 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 April 5, 1952 leaving behind five sons, 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 upto liquidate these. Three of his sons, namely, Gulam 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 October 10, 1942, deeds acknowledging receipt of some cash and movable 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 uture. 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 inheritance :

(3.) THE Madras High Court, in Abdul Kafoor's case (supra) had especially dissented from the Allahabad view in Latafat Hussain's case (supra) on the ground that, if an estoppel was allowed to be pleaded as a defence, on the strength of relinquishment of a spes succession is for consideration, the effect would be to permit the provisions of Mohammedan 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 Mohammedan Law, which does not recognise a purported transfer of a spes succession is 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), 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 could, if protection of any party to a transaction could possibly underlie such a rule, be more the protection of possible transferees so 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 a 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. If there was no "transfer" of property at all, which was the correct position, 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 deed 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 property when that right that actually came into being. An equitable estoppel operates, if its elements are established, as a rule of evidence preventing the assertion of rights which may otherwise exist.