P (PLP)

A copy of Question 19 of the riwaj‑i‑am of Mianwali District compiled at the First Settlement, was brought on the record. It recited that, in the absence of reversioners of fifth or sixth degrees, a daughter and her issue would succeed, and, in their absence, the sister and her issue would succeed. The same entry was repeated in the riwaj‑i-am compiled in 1908. In reply to Question 21, it was noted that, on the death of a person without any lineal descendant, widow or daughters, the inheritance would devolve successively on (1) the father, (2) brothers o their descendants, '(3) mother, (4! grandfather and his descendants (5) grandmother, (6) male agnates up to five generations upwards in order of propinquity, and (7) sisters. The Khans of Isakhel added that the male agnates within seven generations would come before the daughters and the sisters am their descendants. The pedigree‑tables from the earlier Settlements indicate that Muhammad Khan deceased was a descendant in the line of Zarmir and the defendants in the line of Mehr Shah. It is not, however, clear how these two ancestors are related. The transfer or surrender of reversionary rights has been uniformly upheld in the Punjab, to which the Transfer of Property Act has not been specifically extended. In 13 P. R. 1899, it was held that "a sale of a reversionary right of suc cession, though at the time of sale it does not effect a transfer of property, gives rise to a right which the Court will enforce when the inheritance falls into possession." At gage 90, the following observations in Collet's Specific Relief Act under section 18 were quoted with approval:‑ " It is an undeniable proposition that when a party enters into a contract without. the power of performing that contract, and subsequently acquires the power of performing that contract, he is bound to do so, and again, if a man sells an estate to which he has no title, and after the conveyance acquires the title, he will be compelled to convey it to the purchaser. This ruling was followed in A I R 1930 Lah.

928. It was held that "a sale of a reversionary right; of succession, though at the time of the sale it does not effect a transfer of property, gives rise to a right which the Court will enforce when the inheritance falls into possession. Such a contract is enforceable in a province where the Transfer of Property Act is not in force." In that case some ancestral property was sold in 1911. In 1915 Naranjan Singh, the son of an alienor, instituted a suit for a declaration that the alienation in question would not affect his reversionary rights after the death of the vendors. He obtained a decree. An appeal was preferred to the Chief Court. While it was pending, Naranjan Singh, the plaintiff, entered into an agreement with Dharam Singh by which he agreed to give one‑third of the land in dispute to Dharam Singh on payment by him of one‑third of the amount that the Court might direct to‑day if the decree was upheld by the Chief Court. The appeal was decided in favour of Naranjan Singh and he got possession of the property in accordance with the terms of the decree. Dharam Singh then brought a suit for possession of one‑third and expressed his willingness to pay one‑third of the amount subject to which the possession was ordered to be taken. The suit was decreed by the trial Court and the appeal was also dismissed, and Naranjan Singh pre ferred a second appeal to this Court. Reliance was particularly placed upon A. I. R. 1923 P. C.

189. After referring to the various authorities cited, the learned judge observe:‑

"Now with these, authorities I find myself in complete agreement, but the position in the Punjab appears to me to be different from that in Madras and Calcutta where the Transfer of Property Act is in force. In the Calcutta case their Lordships of the Judicial Committee referred to the fact that the law in England was that an agreement to sell a sees successionis could be enforced when the estate fell in. They also pointed out that this was the state of the law in India prior to the enactment of the Transfer of Property Act and that where that Act was in force section 6 of the Act rendered an agreement to sell or a sale of a sees successionis void. As the Transfer of Property Act is not in force in the Punjab, it follows that these authorities do not support Mr. Khosla's contention that here such an agreement cannot be enforced." In A. I. R. 1933 Lah. 378 Currie, J. held that "the Transfer of Property Act not being in force in the Punjab, alienation of reversionary rights is not void,". and relied upon A. I. R. 1930 Lab. 928 and A. I. R. 1926 Lah.

39. In A. I. R. 1936 All. 573, the question of relinquishment by an heir under Muhammadan Law was considered. It was pointed out that "on principle there seems to be no distinction between the rules of English Law and the rules of Muhammadan Law. Such a release or renunciation cannot be operative so as to divest the heir of all rights in the inheritance when the succession opens and to vest the whole property in the other person in whose favour the relinquishment was made. Inheritance is governed by the personal law of the deceased owner, and the devolution of property is brought about by the operation of law, and does not depend on the will of the heir. But there is nothing to prevent an heir from not claiming a share in the property which was devolved on him or from so acting as to estop himself from claiming it". It was added that "the question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Muhammadan Law. There is nothing illegal in a person, for good consideration, contracting not to claim the estate, in the event of his becoming entitled to inherit on the decease of a living person ; and the provisions of section 6, Transfer of Property Act, do not in any way create a bar against the legality of such a contract. Section 6 cannot in terms apply to such a relinquishment. If the relinquishment is in the nature of a gift or transfer of a contingent right then of course it would be void under section 6 ; but if it is merely an agreement or contract for not claiming a contingent right of inheritance when succession opens in future, then the case would not be governed by the provisions of section 6 at all". A similar question arose in Shah Nawaz v. Ghulam Murtaza reported as I. L. R. 1943 (24) Lab

161. On the death of one Muhammad Bakhsh a dispute arose between three of his sons and another person Ghulam Murtaza who asserted that he too was the legitimate son of Muhammad Bakhsh and therefore entitled to an equal share of the property of Muhammad Bakhsh. Ghulam Murtaza brought a suit for possession of his share. In that suit, a compromise was arrived at between the parties by which the sons of Muhammad Bakhsh, while denying that Ghulam Murtaza was the legitimate son of Muhammad Bakhsh, gave him some share in the property in consideration of Ghulam Murtaza with drawing his claim and further agreeing that he would not claim as a reversioner to anyone of the three sons of Muhammad Bakhsh and they would similarly not claim as reversioners on the death of Ghulam Murtaza. Thereafter one of the sons of Muhammad Bakhsh died and Ghulam Murtaza brought the present suit claiming one‑third share as a reversioner of the dead person. On the plea of estoppel having been set up against him, the plaintiff contended that he had only a sees succession is at the time of the relinquishment and such a transfer was void and therefore the present suit was not barred by his previous renunciation. Dalip Singh, J. relied upon I. L. R 40 All. 487 (P. C.), a case under Hindu Law. The learned judge observed :‑-- "The case seems to me entirely indistinguishable from the present case. Here too the question whether Ghulam Murtaza was or was not the legitimate son of Muhammad Bakhsh was disputed. In the compromise a certain portion of the property was given to him without admitting his claim which still remained disputed and it was further agreed that in consider ation of receiving this property Ghulam Murtaza would neither then press his claim as the son of Muhammad Bakhsb to a full share in his father's property nor would in future make his claim as a reversioner to the other sons of Muhammad Bakhsh. The estoppel therefore arises long before the point as to whether a transfer of a spes successionis is valid or invalid. By reason of his accepting the compromise Ghulam Murtaza is now estopped from claiming as a reversioner. In other words, he cannot now in face of that compromise alleged that he is the legitimate son of Muhammad Bakhsh. Hence no question arises as to whether his agreement to relinquish his future share in the brothers' property was or was not a relinquishment of a spes successionis". Din Muhammad, J., after reviewing a large number of authorities, found that "the only conclusion that can be deduced is that however illegal and unenforceable a bare relinquish ment or renunciation of the chance of a heir apparent succeeding to an estate may be, different considerations prevail if that renunciation or relinquishment proceeds on a settlement of conflic ting claims or bona fide disputes between the contracting parties. There was a dispute, therefore, and for that matter a bona fide dispute. Ghulam Murtaza could rightly apprehend that his legitimacy might not be established". The learned counsel for the respondent referred to A. I. R. 1948 Pat. 362, A. I. R. 1931 Lah 3i 5, I. L. R. 30 Born. 304 and I. L. R. 31 Bom.

165. The facts in the Patna case were wholly different. All that was laid down was that a party was entitled to show, without bringing a suit to set aside the compromise decree, that the impugned agreement, though embodied in a compromise decree, could not be enforced in a Court of Law. On the facts of the case the agreement was, however, not found to be in contravention of section 6 (a) of the Transfer of Property Act. In A. I. R. 1931 Lah. 375 it was held that "where an estate belongs to a childless male proprietor, a reversioner entitled to succeed to the property on the death of the childless male proprietor cannot, during his lifetime, transfer his right to succeed so as to invest the transferee with a right to sue". Surely no transfer could clothe a stranger with the right to bring a suit for a declaration challenging the alienation of ancestral property. In I. L. R. 30 Bom. a document was executed by a Muhammadan daughter in favour of her father for consideration by which she relinquished her right of inheritance to the father's property and also to certain ornaments directed to be given to her by her mother. It was remarked in passing that "the chance of an heir apparent succeeding to an estate or a mere possibility of succession could not be transferred" and such a transfer of spes successionis was unknown to, and not recognised by, Muhammadan Law. The validity of the transfer of a "right to succeed" was not directly in issue and the learned judge refrained from giving any opinion as to whether such a contract was or was not valid as it did not arise in the case. The document was presented for registration and its registration was refused. A suit was brought under section 77 of the Registration Act for a decree directing registration of the document. The only matter for decision before the Court was ; whether the registration of the document was refused as it failed to comply with the requirements of section 21 of the Registration Act and the document was ordered to be registered. I. L. R. 31 Bom. 165 deals with the case of the parties to the litigation reported in

1. L. R. 30 Bom.

304. On facts, it was found that the dead of release by Mst. Fatmaboo in favour of her father was in pursuance of a scheme which originated with her father and she had no independent advice and she did not fully understand the nature of the transaction or of the document to which she was putting her signatures. Reliance was also placed on I. L. R. 41 Mad.

365. The right to share in the property of the father was renounced for consideration. On the death of the father, a claim for the share was made. It was held that such a renunciation or transfer was repugnant to Muhammadan Law and could not be, made between the right of inheritance had vested. This proposition is not in dispute. The rulings cited by the learned counsel for the respondent do not touch the question we are directly concerned with in this case. It has been shown above that on a dispute arising between the' remote reversioners of Umar Khan on one side and his widows and daughter on the other, a deed was executed according to which the parties agreed between themselves to the shares in which they would take the property on the death of the widows. It could not be said to be a case of transfer by one or the other. In reality it was a case of a family settlement to resolve the disputes that had arisen and an agreement not to claim more than what had been accepted at the time of the compromise, could not contravence any provision of Customary Law or of general law. The prohibition against the transfer of `sees successionis' as contained in section 6 (a) of the Transfer of Property Act is not in conformity with the English Law. An expectancy in English Law is not property which can be assigned. But English Law differs in this respect that as there is no express prohibition of such an assignment, the assignment, if made for value, operates as a contract to assign if and when the expectancy becomes an interest; and therefore the assignment is effectual as an assignment in equity. In re Ellenborough ((1903) 1 Ch. 697, 700) Buckley, J. said "if value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. A Court of Equity as against him will compel him to do that which ex hypothesis he has not yet effectually done. Future property, possibilities and expectancies are all assignable in equity for value. But when the assurance is not for value, a Court of Equity will not assist a volunteer," vide page 58, 1949, Edition by Mulla of the Transfer of Property Act. In view of the above, the judgment of the learned District Judge cannot be upheld. The agreement of 22nd of March 1921 is binding upon the parties to it and particularly at a time when they were in doubt as to their respective rights in the property and it is no longer open to Mst. Ghulam Fatima to repudiate it. The appeals are consequently accepted ; the decree of the trial Court is restored and the plaintiff's suit dismissed. As the point involved was of considerable difficulty, the parties are left to bear their own costs throughout. K. M. A./ A. H. Appeal accepted.