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AIR 2011 SUPREME COURT 3609
IN THE SUPREME COURT OF INDIA
WITH SLP(C)NOS.14303-14304 OF 2008
SHEHAMMAL
Versus
HASAN KHANI RAWTHER & ORS.
CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008
DECIDED ON : 02.08.2011
AIR 1973 SC 554 – Relied upon
AIR 1936 All 573; (1827) 4 SDA 210; 1956 Trav - Co 217; AIR 1990 Kerala 226; 2004 (1) KLT 586 – Referred
(b) Mohammedan Law – Spes successionis – Estoppel – Petitioners accepting consideration for future shares – Estopped from claiming benefit of spes successionis. (Para 24, 25)
(c) Mohammedan Law – Family Arrangement – Adult sons and daughter receiving consideration from father for relinquishing their future share in the property – This being one to one agreement, cannot be termed family arrangement – Nevertheless shall estop the parties from invoking spes successionis. (Para 25)
Facts of the case:
Meeralava Rawther had four children. All of them moved out of the family house on getting settled in life. When each of his children left the family house, Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby, on the receipt of some consideration, each of them relinquished their respective claim to the properties belonging to Meeralava Rawther. The Respondent No.1 Hassan Khani Rawther, the youngest son, remained with his father and so was not required by his father to execute such a deed.
Meeralava Rawther died intestate in 1986 leaving 1.70 acres of land as his estate.
On 31st March, 1992, the Respondent No.1, Hassan Khani Rawther filed O.S. No.171 of 1992 seeking declaration of title, possession and injunction in respect of the said 1.70 acres of land, basing his claim on an oral gift alleged to have been made in his favour by Meeralava Rawther in 1982.
On 6th April, 1992, the Respondent No.2, Muhammed Rawther, one of the brothers, filed O.S. praying for injunction against his brother, Hassan Khani Rawther, in respect of the suit property. The said suit was subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S.No.168 of 1994.
On the basis of her claim to a 1/9th share in the estate of Late Meeralava Rawther the petitioner, Shehammal filed O.S. seeking partition of the plaint properties comprising the same 1.70 acres of land in respect of which the other two suits had been filed. The said suit was also subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S.No.169 of 1994 and was jointly taken up for trial along with O.S.No.171 of 1992.
By a common judgment the Trial Judge dismissed O.S.No.171 of 1992 filed by the Respondent No.1, for want of evidence. O.S.No.169 of 1994 filed by Shehammal was decreed and in view of the findings recorded in O.S.No.169 of 1994, the trial court dismissed O.S.No.168 of 1994 filed by Muhammed Rawther, the Respondent No.2 herein.
Upon remand by the High Court, the learned Subordinate Judge dismissed O.S.No.171 of 1992, disbelieving the story of oral gift propounded by the Respondent No.1.
The High Court however allowed the suit holding that even if the plaintiff failed to prove the oral gift in his favour, he could not be non-suited, since he alone was having the rights over the assets of Meeralava Rawther in view of the various Deeds of Relinquishment executed by the other sons and daughters of Meeralava Rawther.
Finding of the Court:
Petitioners are estopped from invoking spes successionis.
Result:
SLPs dismissed.
Key Points: - Accepting consideration for future shares estops a Mohammedan from claiming benefit of spes successionis (!) (!) . - Ordinarily, there cannot be a transfer of spes successionis, but it can be avoided by executing a family settlement or accepting consideration for a future share (!) (!) . - A Mohammedan is not entitled to relinquish an expected share in property under general law or personal law, but estoppel applies when conduct indicates relinquishment (!) (!) . - A family arrangement strictly means a joint decision by family members, not individual agreements between the owner and heirs (!) . - Heirs who receive remuneration for relinquishing future claims are estopped from invoking spes successionis, as it would be against public policy (!) (!) .
JUDGMEN
TALTAMAS KABIR, J.
1. Special Leave Petition (Civil) Nos.7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil) 2 Nos.14303-14304 of 2008 filed by one Amina and others, both directed against the final judgment and order dated 18.10.2007 passed by the Kerala High Court in R.F.A.No.75 of 2004 (B) and R.F.A.No.491 of 2006, have been taken up together for final disposal. The parties to the aforesaid SLPs, except for the Respondent No.6, Hassankhan, are siblings. While the petitioner in SLP(C)Nos.7421-7422 of 2008 is the daughter of Late Meeralava Rawther, the Respondent No.1, Hassan Khani Rawther, and the Respondent Nos.2 and 5 are the sons and the Respondent Nos.3 and 4 are the daughters of the said Meeralava Rawther. The Respondent No.6, Hassankhan, is a purchaser of the shares of the Respondent Nos.2 and 5, both heirs of Late Meeralava Rawther. The remaining respondents are the legal heirs of Muhammed Rawther, the second respondent before the High Court. The petitioner in SLP(C)Nos.7421-7422 of 2008 is the plaintiff in O.S.No.169 of 1994 and the third defendant in 3 O.S.No.171 of 1992, filed by Hassan Khani Rawther, is the Respondent No.1 in all the four SLPs.
2. Meeralava Rawther died in 1986, leaving behind him surviving three sons and three daughters, as his legal heirs. At the time of his death he possessed 1.70 acres of land in Survey No.133/1B of Thodupuzha village, which he had acquired on the basis of a partition effected in the family of deceased Meeralava Rawther in 1953 by virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther and his family members, being Mohammedans, they are entitled to succeed to the estate of the deceased in specific shares as tenants in common. Since Meeralava Rawther had three sons and three daughters, the sons were entitled to a 2/9th share in the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof.
3. It is the specific case of the parties that Meeralava Rawther helped all his children to settle down in life. The 4 youngest son, Hassan Khani Rawther, the Respondent No.1, was a Government employee and was staying with him even after his marriage, while all the other children moved out from the family house, either at the time of marriage, or soon, thereafter. The case made out by the Respondent No.1 is that when each of his children left the family house Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby, on the receipt of some consideration, each of them relinquished their respective claim to the properties belonging to Meeralava Rawther. The Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther's legal heirs who was not required by his father to execute such a deed.
4. Meeralava Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the Respondent No.1, Hassan Khani Rawther filed O.S.No.171 of 1992 before the Court of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and injunction in 5 respect of the said 1.70 acres of land, basing his claim on an oral gift alleged to have been made in his favour by Meeralava Rawther in 1982.
5. On 6th April, 1992, the Respondent No.2, Muhammed Rawther, one of the brothers, filed O.S.No.90 of 1992 before the Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan Khani Rawther, in respect of the suit property. The said suit was subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S.No.168 of 1994.
6. On the basis of her claim to a 1/9th share in the estate of Late Meeralava Rawther the petitioner, Shehammal filed O.S.No.126 of 1992 on 25th May, 1992, seeking partition of the plaint properties comprising the same 1.70 acres of land in respect of which the other two suits had been filed. The said suit was also subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumb
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