LATAFAT HUSAIN Vs. HIDAYAT HUSAIN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a 1/8 share in the inheritance of the plaintiff's deceased husband Fasahat Husain. Originally Fasahat Husain and his brother, Tahawar Husain, were entitled to equal shares in some property; and Tahawar Husain died, his estate devolving on his mother Mt. Sanjha Bibi, under the Shia Law. Mt. Sanjha Bibi gifted this property to Fasahat Husain's son from his first wife in 1894. On 6 November 1920 two documents were executed: one was a deed of wakf by Fasahat Husain under which he appointed his second wife, the present plaintiff, Shafiq-un-nisa, as the mutawalli, and constituted the children of Shafiq-un-nisa as the beneficiaries; and the second was a deed of release executed by Shafiq-un-nisa under which she relinquished her claim to her dower against the property of her husband, and also relinquished her claim to any inheritance in the estate reserved by him. Fasahat Husain died in 1928. Thereupon, contrary to the release made by Shafiq-un-nisa she brought the present suit to recover her 1/8 the share in the inheritance of Fasahat Husain. She has not pressed her claim for her dower. The only question that arose for consideration was whether Shafiq-un-nisa could obtain a decree for possession of the 1/8 share in the estate left by Fasahat Husain when she had in his lifetime renounced her claim to such inheritance. Both the Courts below have dismissed the claim. In appeal it is contended before us that a relinquishment of the right of succession made by a Muhammadan heir is prohibited by the Muhammadan Law and is null and void, and cannot stand in the way of the plaintiff when seeking to recover her share of inheritance.

(2.) It seems to us that the question raised in appeal really consists of two parts which are distinct and separate from each other. The first is whether a relinquishment of the right to succession made by a Muhammadan heir is valid in law so as to be binding upon him in the sense that the estate passes to the person in whose favour the relinquishment is made. The second is whether, even if the relinquishment is not effective, there can be an estoppel in certain circumstances.

(3.) The preponderance of authorities on the first point is in favour of the view that a relinquishment by a Muhammadan heir before the succession has opened is under the Muhammadan Law invalid. The point arose in a case decided in 1827 by the Sudder Dewanny Adawlut of Bengal in Mt. Khanum Jan V/s. Mt. Jan Beebee (1827) 4 SDA 210, which case was quoted as an authoritative pronouncement by Macnaghten in his "Principles and Precedents of Muhammadan Law" (Case No. 11). In that case the two daughters of a Mahomedan lady had renounced their right of inheritance to their mother's property on receipt of Rs. 1,000 each from persons in whose favour they had executed the deed. After the death of the mother they waited for nearly 12 years, and then ultimately brought a suit for recovery of their legal shares. The promisees were setting up a deed of gift executed by the mother in their favour, but that was not upheld. The question then arose whether the renouncement was valid, and would prevent the daughters from claiming their shares. The mufti attached to the Zilla Court of Shahabad came to the conclusion that inasmuch as consideration had been received, the plaintiffs were not entitled to succeed although the right parted with had not been in existence at the time. But on appeal the Kazi of the Provincial Court and the Mufti of Patna expressed the opinion that there was no bar to the claim. The Law Officers of the Sudder Dewanny Adawlut declared their opinion in favour of the accuracy of this view. The view was based on the well-recognized proposition that during the lifetime of the mother, the daughters had no right of inheritance, and that therefore their renunciation during the mother's lifetime of their rights of inheritance was null and void, and it amounted to giving up something which had no existence at the time, and that accordingly such act could not invalidate the right of inheritance supervenient to the mother's death, or be any bar to their claim of the estate left by her. The question of estoppel, either in equity or arising under any rule of evidence, does not appear to have been directly referred to the Muftis and the Kazi for their opinion. So far as the proposition that under the Mahomedan law a renunciation of a future right of inheritance is not in itself valid is concerned, this authority has remained unchallenged and has been adopted by the various textbook writers.