SHEHAMMAL versus HASAN KHANI RAWTHER AND ORS.

Citation: [2011] 9 S.C.R. 718 · Decided: 02-08-2011 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2011] 9 S.C.R. 718 
SHE HAM MAL 
v. 
HASAN KHANI RAWTHER AND ORS. 
(Special Leave Petition (C) No. 7421-7422 of 2008) 
AUGUST 2, 2011 
[ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER 
SINGH NIJJAR, JJ.] 
Mohammedan Law: Right of spes successionis -
C Relinquishment of - Held: Chance of a Mohammedan heir-
apparent succeeding to an estate cannot be the subject of a 
valid transfer or release - Ordinarily there cannot be a transfer 
of spes successionis, but the same can be avoided either by 
the execution of a family settlement or by accepting 
D consideration for a future share - It could then operate as 
estoppel against the expectant heir to claim any share in the 
estate of the deceased Of! account of the doctrine of spes 
successionis -
A testamentary disposition by a 
Mohammedan is binding upon the heirs if the heirs consent 
E to the disposition of the entire property and such consent 
could either be express or implied - In the instant case, 'MR' 
got all sons and daughters except respondent no. 1 to execute 
relinquishment deeds whereby they all relinquished their 
respective claim to properties belonging to 'MR' on receipt of 
F some consideration - The methodology resorted to by 'MR' 
can be termed as a family arrangement - The five deeds of 
relinquishment executed by the five sons and daughters of 
'MR' constituted individual agreements entered into between 
·'MR' and the expectant heirs - The heir expectants were 
G estopped under the general law from claiming a share in the 
property of the deceased - Doctrine of spes successionis -
Doctrine of estoppel - Transfer of Property Act, 1882. 
One 'MR' was owner of the suit property comprising 
of 1.70 acres of land. The petitioner was his daughter. 
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718 
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1 
. SHEHAMMAL v. HASAN KHANI RAWTHER AND 
719 
ORS.· 
Respondent nos.1 to 5 were sons and other· daughters A 
of 'MR'. The .case of respondent no.f was that he 
. continued to stay with his father throughout his lifetime 
while other sons moved out of the family house on their 
marriage or after marriage and each time his children left 
the family house, 'MR' used to get them to execute a. 
relinquishment deeds whereby on the receiptof some 
consideration, each of them relinquished their respective 
claim to the properties belonging to 'MR'. Respondent 
\ 
no.1 was not required to execute any such deed as he 
continued to stay with 'MR'. 'MR' died intestate in 1986 c 
leaving the suit property as his estate. Respondent no.1 
filed a suit for declaration of title, possession and · 
injunction in respect of the suit property basing his claim 
on ah oral gift alleged to have been made in his favour 
I by 'MR' in 1982. Thereafter respondent no.2 filed suit 0 
· praying for injunction against respondent no.1 in respect 
of the suit property. The petitioner filed a suit for partition 
of the suit property on the basis of her claim to 1/9th 
share in the estate of 'MR'. The trial court by common 
order dismissed the suit filed by respondent no.1 and 2 E 
respectively while it decreed the suit filed by the 
petitioner. The High Court allowed the appeal of 
respondent no.1 holding that even if respondent no.1 
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 'MR' in view of the various deeds of F 
relinquishment executed by the other sons and 
daughters of 'MR'. 
The question which arose for consideration in these 
special leave petitions were whether in view of the G 
doctrine of spes successionis, as embodied in Section 6 
of the Transfer of Property Act, 1882, and in paragraph 
54 of Mu Ila's "Principles of Mahomedan Law", a Deed of 
Relinquishment executed by an expectant heir could 
operate as estoppel to a claim that may be set up by the 
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720 
SUPREME COURT REPORTS 
[2011} 9 S.C.R. 
A Executor of such Deed after inheritance opens on the 
death of the owner of the property; whether on execution 
of a Deed of Relinquishment after having received 
remuneration for such future share, the expectant heir 
could be estopped from claiming a share in the 
B inheritance; and can a Mohammedan by means of a 
Family Settlement relinquish his right of spes 
successionis when he had still not acquired a right in the 
property. 
c 
Dismissing the special leave petitions, the Court 
HELD: 1.1. Chapter VI of Mulla's "Principles of 
Mahomedan Law" deals with the general rules of 
inheritance under Mohammedan law. Paragraph 54 which 

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