P L D 1956 (W (PLP)

RAHMAN, C. J.‑‑The following three questions have, been referred to the Full Bench in the present case :‑ (1) Is an agreement for consideration by a Muslim heir not to claim the inheritance when it opens, valid or enforce able in any manner and to any extent? (2) Can such an agreement operate as an estoppel sub sequently when the inheritance opens? In case both the questions are answered in the negative (3) Can the heir, who agreed to relinquish his rights for consideration, retain the benefit that he received, or, would the other heirs be entitled at least to restoration of the property or advantage received by him? The questions arose in the following circumstances. Haji Sultan Muhammad of Rawalpindi died on the 4th of October 1941, leaving considerable landed property and a number of heirs. He had three wives, two of whom, Mst. Hayat Noor and Mst. Channo, died in his lifetime. The third, Mst. Karam Jan, is alive. From Mst. Hayat Noor the deceased Haji had a son Shamas Din. From Mst. Channo he had a son Qamar Din and two daughters, Sarwar Jan and Motia Jan. From Mst. Karam Jan he had a daughter Mst. Nasim Akhtar. This lady, before she married Haji Sultan Muhammad, was the wife of one, Din Muhammad, and from the latter, she had a son, Fazal Ilahi, and a daughter, Aisha Bi. Litigation arose on the death of Mst. Nasim Akhtar on the 23rd of March 1942, between the members of the family. Her uterine brother and sister, Fazal Illahi and Aisha Bi, claimed on her death that they were entitled to a share of her property, to the extent of one‑third. As their claim was resisted, they sought to enforce it by a suit for possession by partition, in August 1946. It was common ground between the parties that Mst. Nasim Akhtar had 7/40th share in her father's property, so that the plaintiffs claimed 7/120th share in the estate of the deceased Haji Sultan Muhammad. One of the averments in the plaint was that Shamas Din had relinquished all rights of inheritance to his father, by a written agreement executed in consideration of certain properties being made over to him by Haji Sultan Muhammad in his lifetime. These properties are set out in Schedule B to the plaint. The fact that such a release deed was executed by Shamas Din was not denied, but he pleaded that his father had absolved him from liability under that deed in his own lifetime. This plea was controverter by the plaintiff. Qamar Din, Mst. Sarwar Jan, Mst. Motia Jan, Shamas Din‑ and Mst. Karam Jan were impleaded as defendants Nos. 1 to 5 in the suit, while defendant No. 6 is Qamar Din son of Mehr Muhammad, a transferee of certain property from Shamas Din. The question that arose' for decision, therefore, was whether Shamas Din was bound by the release deed which he had given in his father's favour on receipt of consideration. It is admitted that actually certain properties mentioned in Schedule B to the plaint had been received by Shamas Din and it appears that he had disposed them of before the institution of the present suit. I will first take up question No. 1 for consideration. There has been some controversy over this question. One view has been that the transfer of a spes successionis or an expectancy as an heir is totally void under Muhammadan Law and also under the general law in the regions where the Transfer of Property Act applies. The variant view taken in certain authorities is that though a deed of relinquishment of an expectancy may not be operative as such, it may be upheld as a part of a family settlement or may be set up by way of estoppel against a person claiming a right of inheritance, when succession opens, if the deed was for good consideration. In some of the authorities falling within the second category, it has been further laid down that an agreement of this character could be regarded as an executory contract to transfer property when it falls into possession and could be enforced specifically under the equitable doctrine that equity considers that done which ought to be done. The basic authority in support of the first plea is a decision of the Sudder Dewanny Adawlut reported as Mst. Khanum Jan v. Mst. Jan Beebee (1). The decision was based on the' opinion given by Maulvi Jumal Ali and Mooftee Abbasr Ali who were advisers on questions of Muhammadan Law to the Sudder Dewanny Adawlut. Apparently in that case there was a compromise of disputed claims between members of a Muslim family. Some of the female members were gifted an undivided share in certain properties as consideration for their agreeing to relinquish their right of inheritance which would accrue to them in future. Maulvi Jumal Ali thought that as the gift did not take effect, con sequently, the agreement failed as a whole, because it was not supported by consideration. Mooftee Abbas Ali rested his opinion on the ground that the transfer of expectancy to inherit was not legal as it did not relate to any existing property. On the basis of this decision in most of the text books on Muhammadan Law, it has been mentioned that a transfer of a mere right to inherit is void. Our attention was invited to the following authorities in which this very view was adopted as sound :‑ (Beng. S D A 210) Asa Beevi v. Kammppan Chetty (41 I C 361) (first dealt with by a Division Bench of the Madras High Court in (41 I C 361) and then by a Full Bench of that Court in (48 I C 36). (2) Abdul Hussain Mulla v. Goolam Hussain Ally (I L R 30 Bom. 305 (S B)), and again before a Letters Patent Bench in Sumsuddin Goolam Hussain v. Abdul Hussain Kalimuddin (I L R 31 Born. 165). (3) Meerangani Rowther v. Karunathi Nagur (18 I C 185 (D B)). (4) Mst. Bhagbhari v. Mst. Khatun (A I R 1921 Sind 177(D B)). (5) M. Fayazul Rahman v. Muhammad Usman (2 I C 865 (S B)). In the first case Sadasiva Aiyar, J., expressed the opinion that the relinquishment of his rights of inheritance by an heir- apparent is invalid under the Muhammadan Law. The learned judge observed that chances of succession are not rights of property under the Muhammadan Law, as there can be no heir to a living person under that law and that this rule of Muhammadan Law was unaffected by section 6 of the Transfer of Property Act, subsection (a) of which declares that the chance of an heir‑apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. Spencer, J., however, differed from Sadasiva Aiyar, J., and held that a mere renunciation of a right of succession is not repugnant to the principles of Muhammadan Law. He further thought that if the agreement was for consideration the executant would be estopped from repudiat ing it after having benefited under it. When the case, however, went before a Full Bench in Letters Patent Appeal, it was held that the transfer or renunciation of a right of inheritance by a Muslim before that right has vested in him, is prohibited under the Muslim Law. In the second case the same dictum was affirmed, though the real question decided in the case was whether the document in question was not compulsorily register-able under section 17 of the Registration Act. When the Letters Patent Bench dealt with the case on appeal, it was remarked by the learned Judges that the principle that equity considers that done which ought to be done, could possibly bind a person agreeing to relinquish his rights of inheritance to a living person, but that in the face of section 6 of the Transfer of Property Act, this equitable doctrine could not be pressed into service. Actually in that case it was found that the transferors were pardanashin ladies who had no independent advice before entering into the transaction. That finding would have been enough to dispose of the appeal and the other observations must, therefore, be regarded more or less as obiter dicta. The third case presents no special features, but the fourth case was again one pertaining to pardanashin ladies and the deed was held not to be binding on them and even the consideration for the deed was held to be doubtful. The fifth case was from the Allahabad High Court. The Transfer of Property Act was applicable to U. P., and it was, therefore, remarked by the learned Judges who decided that case that the relinquishment of a chance to succeed to a Muslim was void both under Muslim Law and section 6 of the Transfer of Property Act. It was observed further that such an agree ment could not form the consideration for a compromise. By way of analogy reference was also ‑made to certain authorities under the Hindu Law. They are reported as:‑ (a) Bal Krishna Trimbak Tandulker v. Savitribai (I L R 3 Bom. 37 (D B)). (b) Karusinga Kushansing v. Narsinha Bangrao Patil (A I R 1938 Bom. 121 (D B)). (c) Dhoorjeti Sabhayya v. Dhoorjeti Venkayya (I L R 30 Mad. 201 (D B)). (d) Annada Mohan Roy v. Gour Mohan Mullick (AIR 1923 PC 189). In case (a) it was held that the relinquishment by a Hindu son of his right to inherit his father, cannot take effect as dis inherison under the Hindu Law. In case (b) a deed of release by a daughter in respect of the properties of her father in the possession of the latter's widow, although with consideration, was held to be not binding on her because of section 6 of the Transfer of Property Act which applied to the Province of Bombay. The case was, however, decided mainly on the question of jurisdiction. In case, (c) the Madras High Court also took a similar view. In the Privy Council case Lord Sumner quoted with approval the following observations of Mr. Tyabji. J., made in Sri Jagannada Raju v. Sri Raja Prasade Rao (I L R (1915) 39 Mad. 554):‑ " The Transfer of Property Act does not permit a person having expectations of succeeding to an estate as an heir, to transfer the expectant benefits; when such a transfer is purported to be made, an attempt is in effect made by the two persons to change with each other their legal positions; and an attempt by the one to clothe the other with what the Legislature refuses to recognise as rights; but styles as a mere chance incapable of being transferred. It would be defeating the provisions of the Act to hold that though such hopes or expectation cannot be transferred in present or future, a person may bind himself to bring about the same results by giving to the agreement the form of a promise to transfer not the expectations, but the fruits of expectations by saying that what he has purported 'to do may be described in different language from that which the Legislature has chosen to apply to it for the purpose of condemning it. When the Legislature refuses the transac tion as an attempt to transfer a chance, it indicated the true aspect in which it requires the transaction to be viewed." The Judicial Committee, therefore, indicated that specific performance of such a contract must be refused under the Transfer of Property Act and damages also could not be recovered in spite of such a contract, because it is not performable until the realisation of the expectation occurs. It would thus be seen that the decision was mainly grounded on the provisions of the Transfer of Property Act. The second line of rulings recognises that a deed of relinquishment of this type cannot operate as such, but regards it as an executory contract, from which the party concerned may be estopped from resiling, or it may be upheld as a part of a family settlement of disputed rights, or it may be regarded as a mere agreement to sell when the property falls into possession and, therefore enforceable in equity. The relevant authorities in this connection are:‑ (1) Latafat Hussain v. Hidayat Husain (AIR l936 All, 573 (D B)). (2) Shah Nawaz v. Ghulam Murtaza (A I R 1942 Lah. 138 (D B )). (3) Muhammad Sher v. Mst. Ghulam Fatima (P L D 1951 Lah. 117 (D B)). (4) Nizam‑ud‑Din v. Mst. Jannat Bibi (58 P R 1894 (D B).). (5) Malik Ala Bakhsh v. Ghulam (13 P R 1899 (D B)). (6) Kabal Shah v. Muhammad Baqa (73 I C 120 (S B)): (7) Zabta Khan v. Said Habib (75 IC 246). (8) Nasir‑ul‑Haq v. Faiyaz‑ul‑Rahman (I L R 33 All. 457 (D B)). In the first case a Division Bench .of the Allahabad High Court pointed out that the question of estoppel is really one arising under the Contract Act or the Evidence Act and not one arising under the Muhammadan Law. The learned Judges thought that an agreement for not claiming a contingent right of inheritance when succession opens in future, was not governed by section 6 of the Transfer of Property Act at all; that it was not illegal or forbidden by any law if section 6 of the Transfer of Property Act was not applicable and that in equity, such a contract could be specifically enforced. In the second case which was decided by a Division Bench of the Lahore High Court, Dalip Singh, J., apparently applied the rule of estoppel to hold that the plaintiff was precluded from claiming to be the son of the deceased owner of the property, while Din Muhammad, J., upheld the agreement as a family settlement of a bona fide dispute. The third case which was also from the Lahore High Court, related to disputed rights among the members of a family. The learned judges held that there was nothing illegal in a person, for good consideration, contracting not to claim the estate, in the event of his being entitled to inherit on the decease of a living person; and that section 6 of the Transfer of Property Act created no bar against the legality of such a contract to which, in terms, it did not apply. It was recognised that if it was a transfer or a gift of a contingent right, it should be regarded as void under that section, but if it was merely an agreement or a contract for not claiming a contingent right of inheritance when succession opens in future, then, according to the learned judges, the case would not fall within the purview of section 6 of the Transfer of Property Act at all. It was further observed that the prohibition against such a transfer of a spes successionis as was contained in section 6 (a) of the Transfer of Property Act, was not in conformity with the English Law, wherein assign ment of such an expectancy for value operated as a contract to assign, if and when the expectancy becomes an interest and can be enforced in equity. The fourth case was also one of a settlement of a family dispute in the Punjab region where the Transfer of Property Act, was not in force. Such a contract, it was held, was not unenforceable as being opposed to public policy and the plaintiff was held bound by the document on the death of the person whose property he claimed to inherit. In the fifth case a Division Bench of the Punjab Chief Court decided that under section 18 of the Specific Relief Act, 1877, the sale of a reversionary right of succession, though it does not effect a transfer of the property, gives rise to a right which the Court will enforce when the inheritance falls into possession'. In the sixth and seventh cases a similar view was taken. In the eighth case a Division Bench of the Allahabad High Court found that the relinquish ment by a husband of his right to succeed as an heir of his wife, for good consideration, was not obnoxious to the prohibition' contained in section 6 (a) of the Transfer of Property Act, and apparently the principle of estoppel was invoked. A Full Bench authority of the Punjab Chief Court in Tama (sic) v. Abdullah Khan (66 P R 1897), was also cited before us. In that case, Chatterji, J., who was one of the judges referring the case to the Full Bench, had opined that though a relinquish ment deed of this character did not effect a transfer of property yet it should be held to give rise to rights which the Court of equity may give effect to, by decreeing specific performance. The Full Bench, however, decided the case on the ground that the power of a reversioner to transfer his reversionary right was opposed to the principle of tribal law of the Punjab and, therefore, such a transfer could not be given effect to. Some analogous cases under the Hindu Law may also be noticed. They are:-- (1) Uma Shanker v. Ram Charan (A I R 1939 All. 689 (F B)), (2) Kamaraju v. Kocherlakota (A I R 1925 Mad. 1043 (D B)). (3) Padmun v. Achhar (A I R 1926 Lah. 39 (S B)). (4) Naranjan Singh v. Dharam Singh (A I R 1930 Lah. 928 (D B)). (5) Gobinda v. Chanan Singh (A I R 1933 Lah. 378 (D B)). In the Allahabad case, a Full Bench of that High Court held that a Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign, or to relinquish or even to transmit to his heirs. His right becomes concrete only on her demise. The bare transfer of such an interest even if for valuable consideration would be void, according to the learned Judges. But they added that if the transfer is part and parcel of a family settlement or of a compromise in a dispute between rival claimants to property, it would not necessarily be invalid. In the Madras case, a Division Bench laid down that the relinquishment of a reversionary right could not be the consideration for a compromise, but it was held that if the substance of the transaction is found to be a bona fide settle ment between the parties, then, in spite of the fact that the same transaction might be represented in one of its aspects as a dealing with a spec successionis, it is none the less a real compromise of disputed rights. The principle of estoppel was also referred to. In the Lahore cases the sees successionis of a Hindu reversioner was held to be transferable on account of the fact that the Transfer of Property Act, was not in force in the Punjab Area, but the learned judges made it clear that it would be enforceable as an executory agreement in equity. A consideration of the above authorities does not reveal a uniform principle of application in all such cases, but the preponderance of authority appears to be in favour of the view that in regions where the Transfer of Property Act is not in force, an agreement of this type may be regarded as an executory contract and enforced by way of specific performance in equity. This principle is recognised in English Law and reference, inter alia, may be made to the judgment of Buckley, J., in Towry Law v. Burne ((1903) I Ch. 697). The learned Judge was dealing with the case of a voluntary settlement by a deed of a sees successionis, to trustees. It was held that it could not operate by way of a grant, but that it could‑be regarded by a Court of equity as an agreement to grant or assign what in fact could not be granted or assigned. It was added that future property, possibilities and expectancies were all assignable in equity for value, but not a mere voluntary deed. It is true that the distinction between equitable and legal estates which exists in England does not apply in this country, as was held by the Privy Council in a case going up in appeal from Patna in Chhatra Kumari Devi v. Mohan Bikram Shah (A I R 1931 P C 196). Courts of justice, however, are also Courts of equity in this country, and if a deed of relinquishment of this character has been executed for consideration of which the executant has taken the benefit, there is no reason why in appropriate cases such an agreement should not be equitably enforced, in the absence of any statutory prohibition. What effect should be given to an agreement of this type does not appear to me to be really a question arising under Muhammadan Law. Section 5 of the Punjab Laws Act (IV of 1872), declares that in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and which has not been abolished by any law or declared void by competent authority, or the Muhammadan Law in case where the parties are Muhammadans, except in so far as such law has been altered pr abolished by legislative enactment, or is opposed to the provisions of the Punjab Laws Act, or has been modified by any such custom as has been referred to above. It will be noticed that though succession is one of the questions which has to be decided under Muhammadan Law where the parties are Muslims (unless custom governs the case), transfer of property is not of the matters specified in this section. Although, therefore, a person who executed a deed of relinquishment of his expectancy as an heir under Muhammadan Law, cannot ~e held estopped from claiming when the succession opens that he has a right to inherit and his share would, consequently, devolve on him under Muhammadan Law, yet he may be held bound in equity to transfer the property which has thus devolved on him, to the other party to the relinquishment deed, in proper cases, where the deed was for good consideration. That would be a question relating to the general law of transfers and not pertaining to one of the matters specified in section 5 of the Punjab Laws Act. Our attention was invited to a Full Bench decision of the Rangoon High Court reported as A. R. L. P. Firm v. U Po Kyaing (A I R 1939 Rang. 305), as providing an analogy. Section 13 of the Burma Laws Act, 1898, appear to correspond to section 5 of the Punjab Laws Act. That enactment prescribes that where in any suit or other proceedings in Burma, it is necessary for the Court to decide any questions regarding, inter alia, any religious usage or institution, the Buddhist Law would be applied to Buddists, unless it has been superseded by a legislative enactment or is abolished or is opposed to any custom having the force of law. It was held that a Burmese Buddhist who had become a rahan could not be permitted to buy and sell property, as this would enable him to defeat his own personal law. The learned judges held that this was clearly a question of religious usage or institution. There is, consequently, no analogy between the Rangoon case and the case we have under consideration. Here, as I have pointed out above, the question‑really is one of the effect of a contract of transfer, which does not find any mention in section 5 of the Punjab Laws Act. Questions of estoppel or of transfer fall to be decided under the general civil law and not under la the Muhammadan Law even where the parties are Muslims. I do not think, therefore, that there is any difficulty in adopting the equitable doctrine that such a deed of relinquish ment (as exists in the present case) can be specifically enforced in equity, in appropriate cases, although it will not operate as a transfer of sees successionis. As soon as the property falls into possession, the relevant party may be forced to transfer it as agreed, if he had already received good con sideration of the contract. The question may be raised whether such a contract could be enforced in a partition suit, at the instance of a party for whose benefit the relinquishment deed was executed, either partly or wholly. In Pir Bux v. Muhammad Taher (A I R 1934 P C 235), it was pointed out that section 54 of the Transfer of Property Act, expressly enacts that a contract for the sale of immovable property does not of itself create any interest in or charge on such property. The Judicial Committee, consequently, laid down that there was no room for the application of the English equitable doctrine that a contract for sale of real property makes the purchaser the owner in equity of the estate. It was decided by the Judicial Committee that in a suit for ejectment by the owner, an averment of the existence of sale whether with or without an averment of possession following upon the contract, was not a relevant defence. It was added that if the contract was still enforceable, the defendant may found upon it to have the action stayed, and by suing for specific performance, obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not be of any avail in a case arising before the insertion of section 53‑A in the Transfer of Property Act. The Privy Council case should raise no difficulty in the instant case where one member of a Muslim family has brought a suit for possession by way of partition of his share. In this very suit an agreement to relinquish his right to succeed, executed by another member of the family, for consideration, may be enforced specifically as a contract to sell, as the property has already devolved on him. As a result of the above discussion I would answer the first question formulated in this case in the following terms. An agreement for consideration by a Muslim heir not to claim the inheritance when it opens, does not operate to transfer the expectancy so as to deprive the heir of his chance to succession, but it may, in suitable cases, be equitably enforced as an agreement to sell the property when it fall into possession, on the opening of the succession in future. In what cases it should be enforced will be a question for the Court to consider on the facts and circumstances of each particular case, having regard to all the equities. Such an agreement could also be pressed into service for founding a plea of estoppel against the person who executed it, subsequently when the inheritance opens. The application of this principle would again depend on the circumstances of each case. Question No. 2 has been answered under question No. 1 and no separate answer need be recorded under it. The third question, therefore, does not arise and need not h be answered. I would return the reference made to the Full Bench in these terms. SHABIR AHMAD, J.‑--I agree. B. Z. KAIKAUS, J.‑

I agree. A. H. Reference answered.