ASHA BEEVI Vs. SKMKARUPPAN CHETTY

JUDGEMENT

(1.) We agree with the conclusion arrived at by Mr. Justice Sadasiva Aiyar in this case on the ground that a transfer of an expectancy of this kind is not permitted by the Muhammadan Law. That was decided in accordance with the opinion of the numerous law officers consulted in Musammat Khanum Jan v. Musammat Jan Beebee 4 S.D.A. 210. Case No. 11 cited at page 89 of Macnaugbten s Principles and Precedents of Muhammadan Law is to the same effect. This view has also been taken by the text-writers on Muhammadan Law (Sir Roland Wilson s Digest of Anglo-Muhammadan Law, page 268, and more particularly Volume II, pages 50 and 51 of the 3rd edition of Mr. Amir Ali s Muhammadan Law where the subject is more fully dealt with). Mr. Justice Tyabji s Principles of Muhammadan Law is to the same effect.

(2.) On the other hand reliance has been mainly placed on the decision of the Privy Council in Musammal Hurmut-ool-nissa, Begum v. Allahdin Khan 17 W.R. 108 (P.C.) by which Mr. Justice Spencer appears to have been mainly influenced in dissenting from the conclusion come to by Mr. Justice Sadasiva Aiyar. On examining that case we do not think that their Lordships intended to lay down that a Muhammadan could renounce his right of inheritance before that right had become vested on the death of the person to whom he was entitled to succeed. In that case there had been a very great delay in putting forward the plaintiff s claim to succeed as heir of the deceased and their Lordships observed at page 112: "They may further remark that according to the Muhammadan Law, there may be a renunciation of the right to inherit and that such a renunciation need not be expressed but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another." Having regard to the words "right to inherit" and the words prosecuting a claim", which claim would only arise after the succession had opened, we think that these observations of their Lordships may be taken as dealing with a renunciation after the right of inheritance has vested and are not authority for the proposition that a prior renunciation is authorised by the Muhammadan Law. Mr. Amir Ali in the passage referred to deals with renunciation after the inheritance has vested.

(3.) Reliance has also been placed on a decision of this Court reported in Kunhi Mamod v. Kunhi Moidin 19 M. 176 : 6 M.L.J. 62 : 6 Ind. Dec. (N.S.) 828. That decision has been questioned by all the text book writers who have since dealt with the subject. As pointed out in Wilson s book, the recital that all the law officers were not agreed in the case in Musammat Khanum Jan v. Musammat Jan Beebee 4 S.D.A. 210 is not accurate. Further the respondent was not represented and, therefore, the case was not so fully argued. The learned Judges also proceeded upon the footing that the right of inheritance had vested. We are not prepared to accept this case as an authority for the proposition that under Muhammadan Law a right of inheritance can be renounced before it vests. The decision in Musammat Khanum Jan v. Musammat Jan Beebee 4 S.D.A. 210 has since been referred to with approval by this Court in the judgment of Benson and Sundara Aiyar, JJ., reported as Meerangani Rowther v. Karupathi Nagur Meera Lubbai 18 Ind. Cas. 185 : 24 M.L.J. 258; (1913) M.W.N. 371 and the same view appears to have been expressed by Sir Lawrence Jenkins, C.J. in Sumsuddin v. Abdul Husein 31 B. 165 : 8 Bom. L.R. 781, though the judgment in that case proceeded upon the construction of the provisions of the Transfer of Property Act. Reliance has also been placed upon the decision in Mohammad Hashmat Ali v. Kaniz Fatima 27 Ind. Cas 701 : 13 A.L.J. 110, but there is no discussion of the authorities in that case.