Gift of Property under Muslim Law cannot be Conditional but Absolute

In a recent decision [V. Sreeramachandra Avadhani (D) by L.Rs. v. Shaik Abdul Rahim & Anr], the Supreme Court of India (“Supreme Court”) has had the occasion to deal with an intricate question under Muslim Succession Law – whether there can be a conditional gift of a (immovable) property? In 1952, Sheikh Hussein gifted a ‘titled house’ (through an executed gift deed) to his wife, Banu Bibi. It was stipulated in the deed that Banu Bibi would enjoy the property during her lifetime and would not alienate it. However, the property could devolve in favour of her off spring after her death, and in case she does not have any children, the property would be returned back to Hussein or his near successors. Notwithstanding the conditions under the deed, Banu Bibi sold the house in 1978 to V. Sreeramachandra Avadhani (Appellant – represented by his Legal Representatives). Consequently after Banu Bibi’s death, the Respondents (Shaik Abdul Rahim and Abdul Gaffor) staked claim over impugned house on the ground that, (i) Babu Bibi only had a ‘life interest’ in the property and could not have alienated it, and (ii) being legal representatives of Sheikh Hussein, right and title over the property came to be vested on them.

Principal Senior Civil Judge dismissed Respondents’ claim for the reason that since the gift deed was not in nature of usufruct, the gifted property came to be ‘irrevocably’ vested on Babu Bibi. As such, the conditions in the gift deed, limiting her rights, were void [Relied on: Nawazish  Ali Khan  v. Ali  Raza Khan, AIR 1948  PC 34]. Against this order, the Respondent filed first appeal. While reversing the order of Senior Civil Judge, the First Appellate Court relied on the ‘text’ of the gift deed that had limited the rights of Banu Bibi and had provided that the property would be returned back to Hussein or his near successors. Dissatisfied with the judgement of First Appellate Court, the Appellant filed an appeal before the High Court of Judicature of Andhra Pradesh (“High Court”). Appellant did not get any relief and the High Court, again relying on the text of the gift deed, affirmed the First Appellate Court’s order.

Spes Successionis and Mohammedan Inheritance law

Personal laws, as generally considered, posses privilege as to their exclusion from the applicability of general laws governing India. Recently, one such issue had come before the Supreme Court in the case of Shenammal v. Hasan Khani Rawther and Ors. Special Leave Petition (C) Nos.7421-7422 of 2008 with Slp (C) Nos.14303-14304 of 2008, where a dispute relation to the property issue came before the court. The rule of estopel may not apply to inheritance in general sense, but it might be applied to certain situations, one such situation being in this particular case. The issues which had been resolved by the apex court in this case were –

(i) Whether a Deed of Relinquishment executed by an expectant heir could operate as estoppel to a claim that may be set up by 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?

Section 6 (dd) of the Transfer of Property Act, 1882 states that a future in whatsoever manner secured or maintained cannot be transferred. In other words, it is a spes succesionis which literally means that that a person has a bare possibility of future interest cannot be transferred and the same is prohibited under this act by virtue of Section 6. But, it would also be necessary here to note that Section 2 of the same act provides that provisions pertaining to Transfer to Property Act would not be applicable to the Mohammedan Law. In the instant case, petitioner had been demanding the partition of the property left by her father irrespective of the fact, as alleged by the respondent, that she had already relinquished her right of claiming the property through a deed, and also by obtaining consideration for relinquishing such a deed.

Deceased, whose property is in dispute, left behind him three daughters and three sons who had a dispute among them as regards the partition of the land. It was alleged by the respondent 1 that all of his siblings had relinquished their share by the executing a deed in return of a consideration and they are not estopped from such deeds. Further, it was alleged by the respondent that his late father had orally executed a will in his favour as regards the whole of the land. On the other hand, it had been argued by the counsel of the petitioner that no expected right over the land can be relinquish and only those rights can be relinquished which had already been vested on the person. In this support, counsel for the petitioner relied on the case of Mt. Khannum Jan vs. Mt. Jan Bibi [(1827) 4 SDA 210] where it was held that renunciation implies the yielding up of a right already vested. Reference was also made to Ameer Ali's "Mohammedan Law", where this Court had in an earlier case observed that "renunciation implies the yielding up of a right already vested".

But, court placed reliance on the section 115 of the Indian Evidence Act which lays down the provision relation the estoppel and it had been clearly stated by the court that although Mohammedan law clearly stipulates that no transfer can be said to be a valid which has in fact been made by an heir who has a chance to succeed the property. Supreme Court had further previously held in Gulam Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554] that the principle of an equitable estoppel far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it. It had 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 ultimately means that even though there is a concept of spes successionis, it would not be possible for a Muslim to claim his right over the property which he had relinquished by his own act, and is now estopped by virtue of Section115 of the Indian Evidence Act. Court in this case heavily relied on Paragraph 118 of Mulla's "Principles of Mahomedan Law", and with reference to this it was held by the court that

“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.”

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