GULAM ABBAS versus HAJJ KAYYUM ALI & ORS.

Citation: [1973] 2 S.C.R. 300 · Decided: 18-09-1972 · Supreme Court of India · Bench: A.N. GROVER · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

300 
GULAM ABBAS 
v. 
HAJJ KAYYUM ALI & ORS. 
September 18, 1972 
[A. N. GROVER, M. H. BEG AND A. K. MUKHERJEA, JJ.] 
Maho11u•tlun 
Law-J::.Hoppe/-Execution 
of 
deeds 
acknowledging 
receipt of rnluable consideratwn and relinquishing future possibk rights 
of inheritance in the properties of father~n fa1her's deatli executants 
filing suit for partition of properties comprised in 
deed-Applicability 
of the rule of estoppel-Evidence Act, 1872-Section llS, 
Muslim jurisprudence, where theology and moral concepts are found 
sometimes mingled with secular utilitarian legal prtnciples, qontains a very 
elaborate theory of acts which are good (because they proceed 
from 
ha11na), those which arc bad (because thcv exhibit 'qubuh'), and those 
which are neutral per se. It classifies them according to varying degrees 
of approval or disapproval attached to them. 
The renunciation of a sup· 
posed right, based upon an expect·ancy, "ould not, by any test found there, 
be considered "prohibited". 
The binding force in future of such a ren-
unciation would, even aecording to strict Muslim jurisprudence, depend 
upon th' attendant circumstances and the whole course of conduct 
of 
which it forms a part. In other words, the principle of equitable estoppel. 
far from being opposed to any principle of Muslim Law will be found, on 
investigation, to be completely in consonance with it. [306 F] 
Abdul Rahim, Muhanimedan Jurisprudence, P. 106, referred to. 
K, a Muslim, had incurred debts so heavily that all his property would 
have been swallowed up to liquidate the debts. The appellant and two of 
his brothers, with their labour and money, rescued the estate of their 
father and paid up the debts. 
Two other sons of K who could not con-
tribute anything towards the clearing up of the debts of their father exe-
cuted deeds acknowledging receipt of cash and moveable properfies 
as 
consideration for not claiming any rights in future in the properties men-
tioned in the deeds. 
On K's death the two sons who had· executed the 
deeds iustituled a suit for partition of the properties mentioned in the deeds. 
The first appellate court held that the deeds in question evidenced family 
settlements and that the sqns were ectopped from claiming ,their share in 
the inheritance. 
The High Court in second appeal, decreed 
the suit. 
It proceeded on the assumption that, if law had not prohibited the trans· 
fer of his right of inheritance by a inuslim heir, an estoppel would have 
op.crated against the respondent on the findings given and held that :he 
rule of Muslim Personal law on the subject had the same effect as Section 
6 (a) of the Transfer of Property Act and the chance of a Mahomedan 
heir apparent SU(."ceeding to an estate could not be the subject of a va1id 
transfer or lease. 
In coming to this conclusion, the High Court relied on 
the decision of the Madras High Court in Abdul Kafoor v. Abdul Razack 
(A.J.R. 1959 Mad. 131) in preference 
to the view 
adopted 
by the 
Allahabad· High Court in Latafat Hussain v. Bidayat Hussain (A.J.R. 
1936 All. 573.) 
Allc>wing the appeal and setting aside the judgment and decree of the 
High Court, 
HELD: Upon the facts and circumsta1noes in tllj' case found by the 
courts below, the two sons could not, when rights of inheritance vested 
,\ 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
0 
E 
F 
G 
H 
GULAM ABBAS V. HAJI KAYYUM (Beg, /.) 
301 
in them at the time of their father·s death, claim these rights as such a 
claim would be barred by estoppel. 
The object of the rule of Mahomedan law wbioh do.es not recognise a 
purported transfer of a spes successionis 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) of the 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 is not possible 
to concu• with the view of the M~dras High Court in Abdul Kafoor's case 
that a renunciation of an expe'ctancy, as a purported but legally ineffective 
transfer, is struck by section 23 of the Indian Contract Act. As it would 
he void as a transfer at all there was no need to rely on section 23 of the 
Contract Act. If there was no "transfer" of property at all, which was the 
correct position, but a sin\ple contract which could only operate in future

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