MEMAN MAMAD HAJI ABDUL SAKUR v. ABDUL GAFAR HAJI ABDUL SAKUR
1992-11-27
K.G.SHAH
body1992
DigiLaw.ai
K. G. SHAH, J. ( 1 ) THE plaintiff-appellant sued his brothers sisters and widowed mother for partition of the suit property and for getting his share in those properties. He also claimed relief for taking accounts and getting mesne profits. The suit having been dismissed he is in appeal before this Court. The appellant and respondents Nos. 1 to 11 are the sons and the daughters of deceased Meman Haji Abdul Sakur Haji Isa who died on October 5 1968 On September 16 1971 the appellant filed the present suit for the reliefs as stated above. ( 2 ) THE contesting respondents opposed the suit inter alia on the ground that the plaintiff-appellant had under a family settlement dated June 10 1968 in consideration of getting certain other properties relinuished his interest and share in the suit property and therefore he is now not entitled to file the suit. That contention has weighed with the learned Judge who ultimately dismissed the suit. ( 3 ) ON behalf of the appellant his learned Advocate strenuously contended that the Muslim Law does not know any concept of family arrangement or family settlement and a person governed by the Muslim Law cannot relinquish his future right of inheritance to the property of his father. The family arrangement relied upon by the contesting respondents was also challenged on the ground that the document envisaging the family arrangement is not registered under the Indian Registration Act. ( 4 ) THE learned Judge of the Court below has succinctly dealt with both these twin grounds raised on behalf of the appellant for challenging the family settlement or family arrangement advanced by the contesting respondents to meet the appellants suit. The learned Judge has strongly relied upon the decision in the case of Gulam Abbas vs. Haji Kayam Ali and Ors. AIR 1973 Supreme Court Page 554. I think the learned Judge was perfectly right in saying that the facts of the present case are on all fours with the facts of the aforesaid Supreme Court judgment and his decree dismissing the suit is in my opinion unexecptionable. ( 5 ) THE family arrangement relied upon by the contesting respondents is to be found at Exh. 79 on the record of the case. The deceased father of the plaintiff-appellant as also the appellant and his other brothers are parties to that family arrangement.
( 5 ) THE family arrangement relied upon by the contesting respondents is to be found at Exh. 79 on the record of the case. The deceased father of the plaintiff-appellant as also the appellant and his other brothers are parties to that family arrangement. Jubedabai respondent No. 4 is also a signatory to that family arrangement. Under that family arrangement made during the life-time of the father of the appellant certain properties of the father of the appellant came to be given to the appellant while certain other properties came to be given to the other brothers of the appellant. In order to adjust equities it was also provided in the family arrangement that as the land which was given to the appellant was more as compared to the land given to his other two brothers the appellant should pay Rs. 4000/- to Jubedabai his sister respondent No. 4 herein towards her share in the property of her father on the death of her other. The family arrangement also recited that as the father during his life lime was giving away certain of his properties to his three sons and the daughter by his first wife those three sons and the daughter of the father by his first wife would henceforth have no share in the ether properties of the father and that those three sons and the daughter agreed to that arrangement and undertook to abide by that arrangement. It was further recited that those three sons and the daughter of the father by his first wife would not lay any claim to the properties of the father on the fathers death. However if any of those three sons and the daughter of the father by his first wife laid any such claim then he/she would have to bring into common hotchpotch the properties given to him/her under the family arrangement together with the mesne profits etc. and only then would he/she be entitled to lay claim to his/her share in the properties left behind by the father on the death of the father.
and only then would he/she be entitled to lay claim to his/her share in the properties left behind by the father on the death of the father. ( 6 ) IT is rather shocking to notice that the plaintiff-appellant having got certain properties under the family arrangement has come forward to claim his share in the other properties left behind by his father on the death of the father and as pointed out by the learned Judge he has flatly refused to bring into common hotchpotch the properties which he has got under the family arrangement. This is something which is not only illegal but immoral and in absolute defiance of the agreement and the undertaking given by the appellants in this family arrangement. The appellant cannot be permitted to claim any share in the property left behind by his father after the death of the father at least without bringing those properties which he has got under the family arrangement into the common pool. ( 7 ) THE argument that the concept of family arrangement is unknow to the Muslim Law and that a person governed by the Muslim Law cannot relinquish his future right of inheritance is required to be rejected squarely on the basis of the decision in the case of Gulam Abbas (Supra ).
( 7 ) THE argument that the concept of family arrangement is unknow to the Muslim Law and that a person governed by the Muslim Law cannot relinquish his future right of inheritance is required to be rejected squarely on the basis of the decision in the case of Gulam Abbas (Supra ). In the last line of para-7 of this judgement this is what the Supreme Court has held:"but if the expectant heir goes further and receives consideration and so conducts himself as to mislead and owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him In other words the principle of estoppel remains untouched by this statement"in para-11 of the judgment the Supreme Court has referred to the observations of Abdul Rahim in his Mouhammadan Jurisprudence to the effect that the renunciation of a supposed right based upon an expectancy could not by any test found there be considered prohibited It has been observed that the binding force in future of renunciation would even according to strict Muslim Jurisprudence depend upon the attendant circumstances and the whole course of conduct of which it forms a part In other words the principle of an equitable estoppel far from being opposed to any principle of Muslim Law will be found on investigation to be completely in consonance with it ( 8 ) THUS this judgment of the Supreme Court completely negatives the contention that the appellant-plaintiff could not in law have legally relinquished his share in the property of his father to be left behind by the father on his death ( 9 ) COMING to the facts of the matter as stated by me above the plaintiff-appellant got certain properties under the family settlement and under the gift-deed made by the father in his favour he enjoyed the properties and now retaining those properties for himself he is out to claim share in the other properties left behind by his father If the plaintiff-appellant had not agreed to this family arrangement the father being a person governed by the Muslim Law could well have disposed of his properties as per his own desires excluding the plaintiff-appellants share from each and every of his property But the father did not do so for the reason that the appellant-plaintiff agreed to this arrangement He accepted certain properties allotted to him by the father at the settlement and under a gift-deed made by the father in his favour With this conduct of the plaintiff the equitable estoppel would certainly come in his way in claiming relief for partition of the suit properties ( 10 ) THE argument that the family arrangement being unregistered could not be looked upon at all is required to be rejected The factum of the family arrangement is not in dispute; that the family arrangement has been acted upon is not again in dispute and it is only by way of collatoral use that the document envisaging the family arrangement has been relied upon Therefore that family arrangement can be looked into nothwithstanding the document containing it having not been registered The twin attack by the appellant against the contention of the contesting respondents when the contesting respondents relied upon the family arrangement has therefore no substance That being the position the appeal should fail The same is therefore rejected.
As the parties are inter-related they should bear their own costs of this appeal appeal Dismissed. .