Prima facie, the terms of the High Seas Sales Agreement appear to indicate that till the entire sale price was paid by the Petitioner to the Respondent No.1, the Respondent No.1 would retain its lien over the coal in question and title would also pass to the Petitioner on payment of the full price of the goods. 15. It would not be proper for us at the interlocutory stage to make any further observations regarding the rights of the parties in respect of the balance quantity of coal which was lying with the Respondent No.2 after delivery of 9,542.920 metric tonnes to the Petitioner out of the total consignment of 16,943 metric tonnes. However, in view of Mr. Ranjit Kumar's submissions and having regard to the fact that an opportunity had been given to the Petitioner to lift the said balance quantity of coal on deposit of 6,19,58,123/- within the stipulated period of six weeks, we dispose of the Special Leave Petition by modifying the order of the High Court to the extent that in the event the Petitioner deposits the amount directed to be deposited by the High Court, after deduction of the price of the coal already lifted by the Respondent No.1 within a period of four weeks, the Petitioner will be entitled to lift the remaining quantity of coal lying in the custody of the Respondent No.2. In default of such deposit, the order of the High Court, subject to the above modification, will continue in full force.

                                             REPORTABLE





                    IN THE SUPREME COURT OF INDIA



                    CIVIL APPELLATE JURISDICTION



        SPECIAL LEAVE PETITION (CIVIL) NO.20100 OF 2011





SUCHETAN EXPORTS P. LTD.                      ... PETITIONER





                         Vs.





GUPTA COAL INDIA LIMITED & ORS.               ... RESPONDENTS





                                O R D E R





ALTAMAS KABIR, J.




1.    This order is being passed at the stage of notice on the



Special   Leave   Petition   filed   by   Suchetan   Exports   P.   Ltd.,



which was the Defendant No.1 in Special Civil Suit No.187 of



2011   filed   by   Gupta   Coal   India   Limited,   the   Respondent   No.1



herein.


2.    Some   of   the   facts   disclosed   in   the   Plaint   and   the



Written Statement are not disputed.  It is not disputed that



on   12.4.2010,   the   Plaintiff   and   the   Defendant   No.1   entered



into   an   Agreement   for   sale   and   purchase   of   South   African



Coal   measuring   16,943   metric   tonnes.     The   Plaintiff   agreed



to   sell   the   said   quantity   of   coal   to   the   Defendant   No.1   at



US   $111.75   per   metric   tonne.     On   22.4.2010,   the   Plaintiff,



i.e.,   the   Respondent   No.1   herein,   entered   into   another   High



Seas   Sale   Agreement   with   the   Defendant   No.1/Petitioner



herein.       Clause   2   of   the   said   Agreement   provides   that   the



Plaintiff/Respondent   No.1   herein   had   imported   16,943   metric



tonnes   of  Steaming   Non  Coking   Coal  in   bulk  of   South  African



origin   and   had   shipped   the   same   on  MV   Novios   Meridian



arriving   at   Dharamtar   Port,   under   Bill   of   Lading   Numbers   2,



3   and   4,   all   dated   8.4.2010.     Clause   3   of   the   Agreement



provides   that   the   Plaintiff   had   agreed   to   sell   and   the



Defendant No.1 had agreed to purchase the consignment of the



coal   on   High   Seas   Sale   basis,   subject   to   the   terms   and



conditions   specified   thereunder.              Clause   3(b)   of   the



Agreement provides that the quality determined and certified


by   an   independent   inspecting   agency   at   Disport   would   be



final and binding on both the parties.





3.    On   22.4.2010,   the   aforesaid   vessel   containing   coal



imported   through   the   Respondent   No.3,   Venkatesh   Karriers



Limited,   reached   the   Dharamtar   Port   at   Mumbai   and   according



to   the   case   made   out   in   the   plaint,   the   coal   was   delivered



to   the   Respondent   No.2,   M/s   United   Shippers   Limited,   as   the



stevedore         agent.         On         the         same         day,         the         Respondent



No.1/Plaintiff   raised   and   delivered   a   High   Seas   Sales



Invoice for an amount of                                             8,25,46,296/- upon the



Petitioner   herein   for   sale   of   the   said   coal.     Consequent



thereupon,   the   Respondent   No.2   handed   over   the   total



quantity   of   9,542.920   metric   tonnes   to   the   Petitioner   till



the date of filing of the suit. The balance quantity of coal



amounting   to   7400.082   metric   tonnes   was   lying   with   the



Respondent   no.2   out   of   the   total   quantity   of   16,943   metric



tonnes received by it from the Petitioner.





4.    Since the Petitioner failed to pay the balance sum of



5,82,58,560/-,   the   Respondent   No.1   filed   Special   Civil   Suit


No.187   of   2011,  inter   alia,  for   a   declaration   that   the



Petitioner   had   committed   breach   of   contract   and   that   the



Agreements dated 12.4.2010 and 22.4.2010 stood cancelled and



terminated.   The   Respondent   No.1   also   claimed   return   of   the



balance   quantity   of   coal,   amounting   to   7400.082   metric



tonnes,   lying   with   the   Respondent   No.2   and     for     a     decree



for     an     amount     of                   1,22,04,349/-   against   the



Petitioner   towards   the   balance   payment   of   the   9,542.920



metric   tonnes   of   coal   delivered   to   it   by   the   Respondent



No.2.        Certain   other   claims   were   also   made   regarding



interest and payment of demurrage charges incurred after the



date   of   filing   of   the   suit,   as   also   the   L/C   discounting



charges   of      7,19,483/-.     The   Respondent   No.1   also   claimed



permanent   injunction   to   restrain   the   Respondent   Nos.2   and   3



from   handing   over   the   balance   amount   of   coal   measuring



7400.082   metric   tonnes   lying   with   the   Respondent   No.2   at



Dharamtar   Port,   Mumbai,   either   to   the   Petitioner   or   to   any



other person.   By an application under Order 39 Rules 1 and



2   of   the   Code   of   Civil   Procedure,   the   Plaintiff/Respondent



No.1 also prayed for an interim order in the same terms and


also   sought   a   direction   in   the   form   of   a   mandatory



injunction   to   the   Respondent   No.2   to   hand   over   the   balance



coal to the Respondent No.1.





5.    The   claim   of   the   Respondent   No.1   was   opposed   by   the



Petitioner by filing a Written Statement.   On 9.2.2011, the



trial   court   passed   an        ex-parte     order   of   injunction



restraining the Respondent Nos.2 and 3 from handing over the



custody   of   the   balance   coal   weighing   7400.082   metric   tonnes



to   any   person   and   particularly   to   the   Petitioner.



Subsequently,   by   its   order   dated   16.4.2011,   the   trial   court



allowed the application of the Respondent No.1 for temporary



injunction   and   confirmed   the   ad-interim   injunction   granted



earlier   on   9.2.2011.     The   trial   court   also   passed   an   order



of   injunction   in   mandatory   form   directing   the   Respondent



No.2 to hand over the balance coal of 7400.082 metric tonnes



in its possession to the Respondent No.1 on payment of rent,



if any, due from the said Respondent.


6.    Aggrieved   thereby,   the   Petitioner   preferred   an   appeal



before   the   Nagpur   Bench   of   the   Bombay   High   Court,   being



Appeal from Order No.53 of 2011.  





7.    From   the   submissions   made   on   behalf   of   the   respective



parties,   the   High   Court   noted   that   after   taking   into



consideration   all   the   claims   of   the   Respondent   No.1,   the



total   amount   due   from   the   Petitioner   in   respect   of   the



transaction was                           6,19,58,123/-.  On the other hand, it



was   the   Petitioner's   claim   that   the   suit   as   filed   by   the



Respondent   No.1  was   not  for   recovery  of   money  for   the  goods



supplied,         but         for         cancellation/         termination         of         the



Agreements   dated   12.4.2010   and   22.4.2010,   which   were



governed   by   the   provisions   of   Section   46(1)(a)   read   with



Section   47(1)   of   the   Sale   of   Goods   Act,   1930.   On   behalf   of



the Petitioners, it was also contended before the High Court



that the title and ownership of the goods had already passed



to   the   Petitioner.   It   was   also   urged   that   when   the   entire



quantity   of   coal   was   delivered   to   the   Respondent   No.2   for



the   purpose   of   transmission   of   the   same   to   the   Petitioner



without   reserving   the   right   of   disposal   of   the   goods,   the


lien on the goods stood terminated in view of the provisions



of   Section   49(1)(a),   (b)   and   (c)   of   the   aforesaid   Act.     It



had   also  been   urged  that   at  best   the  Respondent   No.1  herein



would   be   an   "Unpaid   Seller"   as   defined   in   Section   45(1)(a)



of the aforesaid Act, and would be entitled only to recovery



of   cost   of   the   goods   supplied.     It   was   also   submitted   that



since   the   Respondent   No.1   had   lost   its   possession   over   the



coal,   even   the   question   of   exercise   of   the   rights   of   an



unpaid seller and the seller's lien, did not arise.  





8.    Taking into consideration the submissions made on behalf



of   the   respective   parties   and   the   materials   placed   on



record,   the   High   Court   by   the   impugned   order   allowed   the



appeal   in   part   and   modified   the   order   of   the   trial   court



passed on 16.4.2011 in Special Civil Suit No.187 of 2011, in



the following manner :-





      "(a) The   defendant   no.1   is   directed   to   deposit   an

      amount   of   Rs.6,19,58,123/-   (Rupees   Six   Crores

      Nineteen   Lacs   Fifty   Eight   Thousand   One   Hundred

      Twenty   Three   Only)   in   the   Trial   Court,   within   a

      period of six weeks from today.



      (b)    If         such         amount         is         deposited,         within         a

      stipulated   period   by   the   defendant   no.1,   the


      application   Exh.5   for   grant   of   temporary   injunction

      filed by the plaintiff, shall stand dismissed.



      (c)    If   the   defendant   no.1   fails   to   deposit   an

      amount   of   Rs.6,19,58,123/-   (Rupees   Six   Crores

      Nineteen   Lacs   Fifty   Eight   Thousand   One   Hundred

      Twenty   Three  Only),   within  a   stipulated  period,   the

      order of injunction passed by the Trial Court below

      Exh.5   on   16.4.2011,   shall   continue   to   operate

      pending the decision of the suit.



      (d)    The   plaintiff   shall   be   at   liberty   to   file   an

      application   for   withdrawal   of   the   said   amount   if

      deposited   by   the   defendant   no.1   and   the   same   shall

      be   decided   by   the   Trial   Court,   within   a   period   of

      four   weeks   from   the   date   of   serving   copy   of   the

      application,   upon   the   defendant   no.1   or   his

      Counsels."



Mr. Biji Mathew, Adv.

9.    Appearing   for   the   Petitioner/Defendant   No.1,   Mr.   Ranjit



KumaMr.   Biji   Mathew,   Adv.r,   learned   Senior   Advocate,



reiterated   the   submissions   which   had   been   made   before   the



High   Court.     In   addition,   learned   senior   counsel   indicated



that since the Petitioner had already paid a total sum of



3,42,88,767/-,     including   payments   made   to   the   customs   and



port authorities, to the Respondent No.1, the trial court as



also   the   High   Court,   erred   in   directing   the   Petitioner   to



deposit   a  further   sum  of                      6,19,58,123/-   as  against



the balance quantity of the coal, in order to lift the same.


Mr.   Ranjit   Kumar   also   urged   that   the   High   Court   had   also



erred   in   passing   a   conditional   order   that   if   the   amount   as



indicated   hereinabove   was   deposited   within   the   stipulated



period by the Petitioner, then the application for temporary



injunction   filed   by   the   Respondent   No.1   would   stand



dismissed.     However,   in   default   of   deposit   of   the   said



amount within the stipulated period, the order of injunction



passed   by   the   trial   court   would   continue   to   operate   pending



the   decision   of   the   suit.   Mr.   Ranjit   Kumar   submitted   that



having   regard   to   the   provisions   of   the   Sale   of   Goods   Act



referred   to   hereinabove   and   in   particular   Section   49(1)(a)



thereof,   once   the   Respondent   No.1   had   lost   possession   over



the goods, it also lost its lien thereupon and is no longer



entitled   to   pray   for   recovery   of   the   goods   from   the



Respondent No.2.





10.    Mr. Ranjit Kumar submitted that the Petitioner was ready



and   willing   to   deposit   the   balance   price   of   the   remaining



quantity   of   the   coal   measuring   7400.082   metric   tonnes   for



lifting the same and the other claims of the Respondent No.1


towards   demurrage   and   port   charges   etc.   could   be   decided   by



the trial court in the pending suit.





11.    Mr.   Ranjit   Kumar   also   urged   that   by   allowing   the



Respondent   No.1's   prayer   for   interim   relief   and   passing   a



mandatory   order   of   injunction   thereupon,   both   the   trial



court as well as the High Court, had provided the Respondent



No.1 with the ultimate relief prayed for in the suit at the



interim   stage   and   if   the   remaining   quantity   of   coal   was



allowed   to   be   removed   by   the   Respondent   No.1,   the   suit   of



the   Respondent   No.1   would   stand   decreed   at   the   interim



stage.





12.    Mr.   Ranjit   Kumar's   submissions   were   opposed   by   Mr.   P.S.



Patwalia,   learned   Senior   Advocate   appearing   for   the



Respondent   No.1   Company.     It   was   urged   that   on   the   failure



of   the   Petitioner   to   deposit   the   amounts   in   terms   of   the



orders   passed   by   the   trial   court,   as   also   the   High   Court,



the   interim   order   staying   the   handing   over   of   the   balance



quantity   of   goods   by   the   Respondent   No.2   to   the   Respondent



No.1,   stood   vacated   and   thereafter   different   quantities   of


coal   had   been   lifted   by   the   Respondent   No.1   from   the



Respondent No.2 in order to recover the amounts already paid



by it to the foreign seller.  It was submitted that not only



was the Respondent No.1 out of pocket in respect of the sale



price already paid by it to the foreign seller, but even the



Petitioner   had   not   paid   the   price   of   the   coal   which   was



lying   with   the   Respondent   No.2,   which   had   compelled   the



Respondent   No.1   to   lift   the   balance   coal   lying   with   the



Respondent   No.2  and   to  dispose   of  the   same  after   the  period



stipulated   by   the   High   Court   for   deposit   of   the   outstanding



dues had expired.





13.    We   have   carefully   considered   the   submissions   made   on



behalf   of   the   respective   parties   and   we   see   no   reason   to



interfere   with  the   orders  passed   by  the   trial  court   and  the



High   Court.     Having   entered   into   an   Agreement   to   purchase



the   coal   in   question   it   was   upto   the   Petitioner   to   fulfil



its   obligation  towards   the  payment   of  the   price  of   the  coal



and   to   lift   the   same   from   the   Stevedore/Respondent   No.2,



having   particular   regard   to   the   fact   that   the   Agreement   was



a   High   Seas   Sales   Agreement   which   entails   clearance   of   the


goods from the vessel and its entrustment with the Stevedore



which   involved   heavy   costs  per   diem.                                In   this   regard,



paragraph 3 of the aforesaid Agreement,  inter alia, provides



that   the   Respondent   No.1/seller   would   have   a   lien   over   the



cargo         unless         payment         was         made         in         full         and         the



Petitioner/purchaser subrogated its right of insurance claim



in   favour   of   the   Respondent   No.1.     It   was   also   stipulated



that   the   quality   was   to   be   determined   and   certified   by   an



independent   inspection   agency   of   Disport   and   the   same   would



be   final   and   binding   on   both   the   parties.     It   was   further



stipulated   that   the   seller   would   thereupon   transfer   the



rights in respect of the goods to the buyer by endorsing in



favour   of   the   buyer   a   set   of   negotiable   documents   and   hand



over the same to the latter.





14.    Prima  facie, the  terms of  the High  Seas Sales  Agreement



appear   to  indicate   that  till   the  entire   sale  price   was  paid



by   the   Petitioner   to   the   Respondent   No.1,   the   Respondent



No.1   would   retain   its   lien   over   the   coal   in   question   and



title   would   also   pass   to   the   Petitioner   on   payment   of   the



full price of the goods.


15.    It would not be proper for us at the interlocutory stage



to make any further observations regarding the rights of the



parties in respect of the balance quantity of coal which was



lying   with   the   Respondent   No.2   after   delivery   of   9,542.920



metric tonnes to the Petitioner out of the total consignment



of   16,943   metric   tonnes.     However,   in   view   of   Mr.   Ranjit



Kumar's   submissions   and   having   regard   to   the   fact   that   an



opportunity   had   been   given   to   the   Petitioner   to   lift   the



said   balance  quantity   of  coal   on  deposit   of                        



6,19,58,123/-   within   the   stipulated   period   of   six   weeks,   we



dispose of the Special Leave Petition by modifying the order



of   the   High   Court   to   the   extent   that   in   the   event   the



Petitioner   deposits   the   amount   directed   to   be   deposited   by



the   High   Court,   after   deduction   of   the   price   of   the   coal



already   lifted   by   the   Respondent   No.1   within   a   period   of



four   weeks,   the   Petitioner   will   be   entitled   to   lift   the



remaining   quantity   of   coal   lying   in   the   custody   of   the



Respondent   No.2.     In   default   of   such   deposit,   the   order   of



the   High   Court,   subject   to   the   above   modification,   will



continue in full force.


16.    In   the   facts   of   the   case,   the   parties   will   bear   their



own costs.





                                                ...............................................................J.

                                                            (ALTAMAS KABIR)





                                                  ...............................................................J.

                                                            (CYRIAC JOSEPH)





                                                  ...............................................................J.

                                                  (SURINDER SINGH NIJJAR)

New Delhi

Dated: 02.08.2011.

SPES-SUCCESSION-RELINQUISHMENT-ESTOPEL-MOHAMMADEN LAW We are, however, not inclined to accept that the methodology resorted to by Meeralava Rawther can strictly be 26 said to be a family arrangement. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of estoppel is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be estopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas's case (supra).-

                                                                       1





                                                  REPORTABLE





                      IN THE SUPREME COURT OF INDIA



                      CIVIL APPELLATE JURISDICTION





        SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008





SHEHAMMAL                                          ... PETITIONER





          Vs.



HASAN KHANI RAWTHER & ORS.                         ... RESPONDENTS





                                  WITH



                      SLP(C)NOS.14303-14304 OF 2008





                          J U D G M E N T





ALTAMAS 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


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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   renumbered   as


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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   dated



15.11.1996,   the   learned   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.                A   subsequent



application filed by the plaintiff in O.S.No.171 of 1992 for



restoration   of   the   said   suit   and   another   application   for



setting   aside   the   decree   in   O.S.No.169   of   1994,   were



dismissed by the trial court.





7.    The   Respondent   No.1   herein,   Hassan   Khani   Rawther,   moved



the   High   Court   by   way   of   C.M.A.Nos.191   of   2000   and   247   of



2000   and  the   High  Court   by  its   judgment  dated   17.1.2003  set



aside the decree in O.S.Nos.171 of 1992 and 169 of 1994 and



directed   the   trial   court   to   take   back   O.S.Nos.171   of   1992



and   169   of   1994   to   file   and   to   dispose   of   the   same   on


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merits.     On   remand,   the   learned   Subordinate   Judge   dismissed



O.S.No.171   of   1992,   disbelieving   the   story   of   oral   gift



propounded   by   the   Respondent   No.1.     The   matter   was   again



taken   to   the   High   Court   against   the   order   of   the   learned



Subordinate   Judge.     The   Respondent   No.1   filed   R.F.A.Nos.75



of   2004   and   491   of   2006   in   the   Kerala   High   Court   and   the



same   were   allowed   by   the   learned   Single   Judge   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.





8.    Being   aggrieved   by   the   judgment   of   reversal   passed   by



the   learned   Single   Judge   of   the   High   Court,   the   petitioners



herein   in   the   four   Special   Leave   Petitions   have   questioned



the validity of the said judgment.                        


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9.         Appearing for the Petitioners in both the SLPs, Mr. M.T.



George,   learned   Advocate,   submitted   that   the   impugned



judgment   of   the   High   Court   was   based   on   an   erroneous



understanding of the law relating to relinquishment of right



in   a   property   by   a   Mohammedan.     It   was   submitted   that   the



High   Court   had   failed   to   truly   understand   the   concept   of



spes successionis  which has been referred to in paragraph 54



of          Mulla's         "Principles         of         Mahomedan         Law",         which



categorically indicates that a Muslim is not entitled in law



to   relinquish   an   expected   share   in   a   property.     Mr.   George



submitted   that   the   said   doctrine   was   based   on   the   concept



that   the   Mohammedan   Law   did   not   contemplate   inheritance   by



way of expectancy during the life time of the owner and that



inheritance   opened   to   the   legal   heirs   only   after   the   death



of   an   individual   when   right   to   the   property   of   the   legal



heirs   descended   in   specific   shares.   Accordingly,   all   the



Deeds of Relinquishment executed by the siblings, except for



the Respondent No.1, were void and were not capable of being


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acted   upon.     Accordingly,   when   succession   opened   to   the



legal   heirs   of   Meeralava   Rawther   on   his   death,   each   one   of



them succeeded to a specified share in his estate.





10.    It   was   also   submitted   that   as   a   result,   the   finding   of



the   High   Court   in   R.F.A.No.491   of   2006   that   even   if   the



story   of  oral   gift  set   up  by   the  plaintiff   was  disbelieved,



he   would   still   be   entitled   to   succeed   to   the   entire   estate



of   the   deceased,   on   account   of   the   Deeds   of   Relinquishment



executed   by   the   other   legal   heirs   of   Meeralava   Rawther,   was



erroneous   and   was   liable   to   be   set   aside.     Mr.   George



contended   that   the   High   Court   wrongly   interpreted   the



decision   of   this   Court   in   the   case   of  Gulam   Abbas  Vs.  Haji



Kayyum Ali & Ors.  [AIR 1973 SC 554].   In the said decision,



this   Court   held   that   the   applicability   of   the   Doctrine   of



Renunciation   of   an   expectant   right   depended   upon   the



surrounding   circumstances   and   the   conduct   of   the   parties



when   such   a   renunciation/relinquishment   was   made.     It   was



further         held         that         if         the         expectant         heir         received


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consideration   for   renouncing   his   expectant   share   in   the



property   and  conducted   himself  in   a  manner   so  as   to  mislead



the   owner  of   the  property   from  disposing   of  the   same  during



his   life   time,   the   expectant   heir   could   be   debarred   from



setting   up   his   right   to   what   he   was   entitled.   Mr.   George



submitted   that   the   High   Court   overlooked   the   fact   that   this



Court   had   held   that   mere   execution   of   a   document   was   not



sufficient   to   prevent   the   legal   heirs   from   claiming   their



respective shares in the parental property.





11.    Mr. George submitted that apart form the above, the High



Court   allowed   itself   to   be   misled   into   accepting   a   "family



arrangement"   when   such   a   contingency   did   not   arise.     The



transactions   involving   the   separate   Deeds   of   Relinquishment



executed   by   each   of   the   heirs   of   Meeralava   Rawther,



constituted   an   individual   act   and   could   not   be   construed   to



be   a  family   arrangement.    Mr.  George   submitted  that   even  if



the   story   made   out   on   behalf   of   the   Respondent   No.1,   that



Meeralava Rawther made each of his children execute Deeds of


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Relinquishment   on   their   leaving   the   family   house,   is



accepted,   the   same   cannot   by   any   stretch   of   imagination   be



said   to   be   a   family   arrangement   which   had   been   accepted   by



all the legal heirs of Meeralava Rawther.  Thus, misled into



accepting   a   concept   of   "family   arrangement",   the   High   Court



erroneously   relied   on   the   decision   of   the   Allahabad   High



Court   in  Latafat   Hussain  Vs.  Bidayat   Hussain  [AIR   1936   All.



573],  Kochunni   Kochu  Vs.  Kunju   Pillai  (1956   Trav   -   Co   217,



Thayyullathil Kunhikannan  Vs  Thayyullathil Kalliani And Ors.



[AIR   1990   Kerala   226]   and  Hameed  Vs  Jameela  (2004   (1)   KLT



586), where it had been uniformly held that when there is a



family   arrangement   binding   on   the   parties,   it   would   operate



as estoppel by preventing the parties from resiling from the



same   or  trying   to  revoke   it  after   having  taken   advantage  of



such arrangement. Mr. George submitted that having regard to



the   doctrine   of  spes   successionis,   the   concept   of   estoppel



could not be applied to Muslims on account of the fact that



the law of inheritance applicable to Muslims is derived from


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the Quran, which specifies specific shares to those entitled



to   inheritance   and   the   execution   of   a   document   is   not



sufficient          to         bar         such         inheritance.              Accordingly,



renunciation   by   an   expectant   heir   in   the   life   time   of   his



ancestor   is   not   valid   or   enforceable   against   him   after   the



vesting   of   the   inheritance.     Mr.   George   reiterated   that   the



Deeds   of   Relinquishment   between   A2   to   A6   could   not   be



treated   as   a   "family   arrangement"   since   all   the   members   of



the   family   were   not   parties   to   the   said   Deeds   and   his



position   not   having   altered   in   any   way,   the   Respondent   No.1



is   not   entitled   to   claim   exclusion   of   the   other   heirs   of



Late Meeralava Rawther from his estate.





12.    In   this   regard,   Mr.   George   also   drew   our   attention   to



Section   6   of   the   Transfer   of   Property   Act,   1882,   where   the



concept   of  spes  successionis   has   been   incorporated.     It   was



pointed out that Clause (a) of Section 6 is in  pari materia



with   the   doctrine   of  spes  successionis,   as   incorporated   in



paragraph   54   of   Mulla's   "Principles   of   Mahomedan   Law"   and


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provides that the chance of a person succeeding to an estate



cannot be transferred.



13.    In   view   of   his   aforesaid   submissions,   Mr.   George



submitted   that   the   impugned   judgment   and   decree   of   the   High



Court   was   liable   to   be   set   aside   and   that   of   the   learned



Subordinate Judge was liable to be restored.





14.    Mr.   V.   Giri,   learned   Advocate,   who   appeared   for   the



Respondent No.1, urged that in view of the three-Judge Bench



decision   in  Gulam   Abbas's   case   (supra),   it   was   not   open   to



the   Petitioner   to   claim   that   the   Doctrine   of   Estoppel   would



not   be   applicable   in   the   facts   of   this   case.     Mr.   Giri



submitted   that   the   view   expressed   in  Gulam   Abbas's   case



(supra)   had   earlier   been   expressed   by   other   High   Courts   to



which   reference   has   been   made   hereinbefore.     He   urged   that



all   the   Courts   had   taken   a   consistent   view   that   having



relinquished   his   right   to   further   inheritance,   a   legal   heir



could   not   claim   a   share   in   the   property   once   inheritance



opened on the death of the owner of the property.


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15.    Mr.   Giri   contended   that   any   decision   to   the   contrary



would   offend   the   provisions   of   Section   23   of   the   Indian



Contract   Act,  1872,   as  being   opposed  to   public  policy.     Mr.



Giri   urged   that   the   principles   of   Mahomedan   law   in   relation



to   the   law   as   incorporated   in   the   Transfer   of   Property   Act



and   the   Indian   Contract   Act,   had   been   considered   in   great



detail   by   the   three-Judge   Bench   in       Gulam   Abbas's   case



(supra).     Learned   counsel   pointed   out   that   on   a   conjoint



reading   of   Section   6   of   the   Transfer   of   Property   Act   and



paragraph   54   of   Mulla's   "Principles   of   Mahomedan   Law"   it



would   be  quite   evident  that   what  was   sought  to   be  protected



was   the   right   of   a   Mohammedan   to   the   chance   of   future



succession   to   an   estate.     Learned   counsel   submitted   that



neither   of   the   two   provisions   takes   into   consideration   a



situation   where   a   right   of  spes   successionis  is   transferred



for   a   consideration.     Mr.   Giri   submitted   that   in  Gulam



Abbas's   case   (supra)   the   said   question   was   one   of   the



important   questions   which   fell   for   consideration,   since   it


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had a direct bearing on the question in the light of Section



23   of   the   Indian   Contract   Act,   1872.     Mr.   Giri   submitted



that   the   bar   to   a   transfer   of   a   right   of  spes   successionis



is   not   an   absolute   bar   and   would   be   dependent   on



circumstances           such          as         receipt         of         consideration                 or



compensation   for   relinquishment   of   such   expectant   right   in



future.     Mr.   Giri   urged   that   the   Special   Leave   Petitions



were wholly misconceived and were liable to be dismissed.





16.    From   the   submissions   made   on   behalf   of   the   respective



parties   and   the   facts   of   the   case,   three   questions   of



importance emerge for decision, namely:-





(i)           Whether   in   view   of   the   doctrine   of                                         spes



         successionis, as embodied in Section 6 of the Transfer



         of Property Act, 1882, and in paragraph 54 of Mulla'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


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          the   Executor   of   such   Deed   after   inheritance   opens   on



          the death of the owner of the property?





(ii)           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 inheritance?                    





(iii)     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?



17.     Chapter   VI   of   Mulla's   "Principles   of   Mahomedan   Law"



deals with the general rules of inheritance under Mohammedan



law.     Paragraph   54   which   falls   within   the   said   Chapter



relates   to   the   concept   of   transfer   of  spes   successionis



which   has   also   been   termed   as   "renunciation   of   a   chance   of



succession".   The   said   paragraph   provides   that   the   chance   of



a  Mohammedan heir-apparent succeeding to an estate cannot be



said to be the subject of a valid transfer or release.   The


                                                                                    17





same   is   included   in   Section   6   of   the   Transfer   of   Property



Act   and   the   relevant   portion   thereof,   namely,   clause   (a)   is



extracted below :-





       "6.   What   may   be   transferred.-  Property   of   any   kind

       may   be  transferred,   except  as   otherwise  provided   by

       this   Act   or   by   any   other   law   for   the   time   being   in

       force.



       (a) 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."

 



       The   provisions   of   Section   6(a)   have   to   be   read   along



with Section 2 of the Act, which provides for repeal of Acts



and   saving   of   certain   enactments,   incidents,   rights,



liabilities   etc.   It   specifically   provides   that   nothing   in



Chapter   II,  in   which  Section   6  finds   place,  shall   be  deemed



to affect any rule of Mohammedan Law.





18.    Inspite of the aforesaid provisions, both of the general



law   and   the   personal   law,   the   Courts   have   held   that   the


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fetters   imposed   under   the   aforesaid   provisions   are   capable



of   being   removed   in   certain   situations.     Two   examples   in



this regard are -





(i)     When   an   expectant   heir   willfully   does   something   which



          has the effect of attracting the provisions of Section



          115 of the Evidence Act, is he estopped from claiming



          the   benefit   of   the   doctrine   of  spes   successionis,   as



          provided   for   under   Section   6(a)   of   the   Transfer   of



          Property  Act,  1882,  and  also  under  the  Mohammedan  Law



          as  embodied  in  paragraph  54  of  Mulla's  "Principles  of



          Mahomedan Law"?





(ii)             When   a   Mohammedan   becomes   a   party   to   a   family



          arrangement, does it also entail that he gives up his



          right of spes successionis.





        The   answer   to   the   said   two   propositions   is   also   the



answer to the questions formulated hereinbefore in paragraph



16.


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19.    The  Mohammedan   Law   enjoins   in   clear   and   unequivocal



terms that a chance of a Mohammedan heir-apparent succeeding



to   an   estate   cannot   be   the   subject   of   a   valid   transfer   or



release.     Section   6(a)   of   the   Transfer   of   Property   Act   was



enacted   in   deference   to   the   customary   law   and   law   of



inheritance prevailing among Mohammedans.





20.    As   opposed   to   the   above,   are   the   general   principles   of



estoppel as contained in Section 115 of the Evidence Act and



the   doctrine   of   relinquishment   in   respect   of   a   future   share



in   property.   Both   the   said   principles   contemplated   a



situation   where   an   expectant   heir   conducts   himself   and/or



performs   certain   acts   which   makes   the   two   aforesaid



principles   applicable   inspite   of   the   clear   concept   of



relinquishment   as   far   as   Mohammedan   Law   is   concerned,   as



incorporated   in   Section   54   of          Mulla's   "Principles   of



Mahomedan   Law".    Great  reliance   has  been   placed  by   both  the



parties   on   the   decision   in  Gulam   Abbas's   case   (supra).


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While   dealing   with   a   similar   situation,   this   Court   watered



down   the   concept   that   the   chance   of   a   Mohammedan   heir



apparent   succeeding  to   an  estate   cannot  be   the  subject   of  a



valid   transfer   on   lease   and   held   that   renunciation   of   an



expectancy   in   respect   of   a   future   share   in   a   property   in   a



case   where   the   concerned   party   himself   chose   to   depart   from



the earlier views, was not only possible, but legally valid.



Referring   to   various   authorities,   including   Ameer   Ali's



"Mohammedan   Law",   this   Court   observed   that   "renunciation



implies the yielding up of a right already vested".   It was



observed   in  the   facts  of   that  case   that  during   the  lifetime



of   the   mother,   the   daughters   had   no   right   of   inheritance.



Citing   the   decision   in   the   case   of  Mt.   Khannum   Jan  vs.  Mt.



Jan   Bibi  [(1827)   4   SDA   210]   it   was   held   that   renunciation



implies   the   yielding   up   of   a   right   already   vested.



Accordingly,   renunciation   during   the   mother's   lifetime   of



the   daughters'   shares   would   be   null   and   void   on   the   ground



that   an   inchoate   right   is   not   capable   of   being   transferred


                                                                         21





as such right was yet to crystallise.   This Court also held



that   "under   the   Muslim   Law   an   expectant   heir   may,



nevertheless,   be   part   of   a   course   of   conduct   which   may



create an estoppel against claiming the right at a time when



the   right   of   inheritance   has   accrued".   It   was   observed   by



the   learned   Judges   that   the   Contract   Act   and   the   Evidence



Act   would   not   strictly   apply   since   they   did   not   involve



questions   arising   out   of   Mohammedan   Law.           This   Court



accordingly   held   that   the   renunciation   of   a   supposed   right,



based   upon   an   expectancy,   could   not,   by   any   test   be



considered "prohibited".  





21.    This Court ultimately held that the binding force of the



renunciation   of   a   supposed   right,   would   depend   upon   the



attendant   circumstances   and   the   whole   course   of   conduct   of



which it formed a part. In other words, the principle of an



equitable   estoppel   far   from   being   opposed   to   any   principle



of Mohammedan Law, is really in complete harmony with it.


                                                                          22





22.    On   the   question   of   family   arrangement,   this   Court



observed   that   though   arrangements   arrived   at   in   order   to



avoid future disputes in the family may not technically be a



settlement, a broad concept of a family settlement could not



be the answer to the doctrine of spes successionis.





23.    There  is little  doubt that  ordinarily there  cannot be  a



transfer of  spes successionis,  but in the exceptions pointed



out   by   this   Court   in  Gulam   Abbas's   case   (supra),   the   same



can   be   avoided   either   by   the   execution   of   a   family



settlement or by accepting 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 on account



of the doctrine of  spes successionis.  While dealing with the



various   decisions   on   the   subject,   which   all   seem   to   support



the   view  taken   by  the   learned  Judges,   reference  was   made  to



the   decision   of   Chief   Justice   Suleman   of   the   Allahabad   High



Court   in   the   case   of  Latafat   Hussain  Vs.  Hidayat   Hussain



[AIR   1936   All   573],   where   the   question   of   arrangement


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between   the   husband   and   wife   in   the   nature   of   a   family



settlement, which was binding on the parties, was held to be



correct in view of the fact that a presumption would have to



be   drawn  that   if  such   family  arrangement   had  not   been  made,



the   husband   could   not   have   executed   a   deed   of   Wakf   if   the



wife   had   not   relinquished   her   claim   to   inheritance.     It   is



true   that   in   the   case   of  Mt.   Khannum   Jan  (supra),   it   had



been   held   by   this   Court   that   renunciation   implied   the



yielding   up   of   a   right   already   vested   or   desisting   from



prosecuting   a   claim   maintainable   against   another,   and   such



renunciation during the lifetime of the mother of the shares



of   the   daughters   was   null   and   void   since   it   entailed   the



giving   up   of   something   which   had   not   yet   come   into



existence.





24.    The   High   Court   after   considering   the   aforesaid   views   of



the   different   jurists   and   the   decision   in   connection   with



the   doctrine   of   relinquishment   came   to   a   finding   that   even



if   the   provisions   of   the   doctrine   of  spes   successionis  were


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to   apply,   by   their   very   conduct   the   Petitioners   were



estopped from claiming the benefit of the said doctrine.   In



this   context,   we   may   refer   to   yet   another   principle   of



Mohammedan   Law   which   is   contained   in   the   concept   of   Wills



under   the   Mohammedan   Law.          Paragraph   118   of     Mulla's



"Principles   of   Mahomedan   Law"   embodies   the   concept   of   the



limit   of   testamentary   power   by   a  Mohammedan.     It   records



that   a   Mohammedan   cannot   by   Will   dispose   of   more   than   a



third   of  the   surplus  of   his  estate   after  payment   of  funeral



expenses   and   debts.     Bequests   in   excess   of   one-third   cannot



take effect unless the heirs consent thereto after the death



of   the   testator.        The   said   principle   of   testamentary



disposition   of   property   has   been   the   subject   matter   of



various   decisions   rendered   by   this   Court   from   time   to   time



and   it   has   been   consistently   stated   and   reaffirmed   that   a



testamentary disposition by a Mohammedan is binding upon the



heirs   if  the   heirs  consent   to  the   disposition  of   the  entire



property   and   such   consent   could   either   be   express   or


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implied.   Thus,   a   Mohammedan   may   also   make   a   disposition   of



his entire property if all the heirs signified their consent



to   the   same.   In   other   words,   the   general   principle   that   a



Mohammedan   cannot   by   Will   dispose   of   more   than   a   third   of



his   estate   after   payment   of   funeral   expenses   and   debts   is



capable   of   being   avoided   by   the   consent   of   all   the   heirs.



In   effect,   the   same   also   amounts   to   a   right   of



relinquishment   of   future   inheritance   which   is   on   the   one



hand   forbidden   and   on   the   other   accepted   in   the   case   of



testamentary   disposition.   Having   accepted   the   consideration



for   having   relinquished   a   future   claim   or   share   in   the



estate of the deceased, it would be against public policy if



such   a   claimant   be   allowed   the   benefit   of   the   doctrine   of



spes   successionis.  In   such   cases,   we   have   no   doubt   in   our



mind that the principle of estoppel would be attracted.





25.    We   are,   however,   not   inclined   to   accept   that   the



methodology resorted to by  Meeralava Rawther can strictly be


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said   to   be   a   family   arrangement.   A   family   arrangement   would



necessarily   mean   a   decision   arrived   at   jointly   by   the



members   of   a   family   and   not   between   two   individuals



belonging   to   the   family.     The   five   deeds   of   relinquishment



executed by the five sons and daughters of Meeralava Rawther



constitute   individual   agreements   entered   into   between



Meeralava   Rawther   and   the   expectant   heirs.              However,



notwithstanding the above, as we have held hereinbefore, the



doctrine   of  estoppel   is  attracted   so  as   to  prevent   a  person



from   receiving   an   advantage   for   giving   up   of   his/her   rights



and   yet  claiming   the  same   right  subsequently.     In   our  view,



being   opposed   to   public   policy,   the   heir   expectant   would   be



estopped   under  the   general  law   from  claiming   a  share   in  the



property   of  the   deceased,  as   was  held   in  Gulam   Abbas's  case



(supra).


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26.    We are not, therefore, inclined to entertain the Special



Leave   Petitions   and   the   same   are   accordingly   dismissed,   but



without any order as to costs.









                                               ............................................................J.

                                                   (ALTAMAS KABIR)





                                               ............................................................J.

                                                   (CYRIAC JOSEPH)





                                               ............................................................J.

                                              (SURINDER SINGH NIJJAR)



New Delhi

Dated: 02.08.2011