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Valanhiyil Kunhi Avulla and ors. Vs. Eengayil Peetikayil Kunhi Avulla and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 334 of 1960
Judge
Reported inAIR1964Ker200
ActsMahomedan Law; Transfer of Property Act, 1882 - Sections 6; Contract Act, 1872 - Sections 23
AppellantValanhiyil Kunhi Avulla and ors.
RespondentEengayil Peetikayil Kunhi Avulla and ors.
Appellant Advocate V.P. Gopalan Nambiar and; V. Bhaskaran Nambiar, Advs.
Respondent Advocate K. Kuttikrishna Menon and; B. Moosakutty, Advs. for Respondent 1 and 2
DispositionAppeal and cross-objection dismissed
Cases ReferredAnnada Mohan Roy v. Gour Mohan Mullick
Excerpt:
family - interpretation - section 23 of indian contract act, 1872, section 6 of transfer of property act, 1882 and mohammedan law - agreement providing for disbursal of property of deceased giving right over such property to some of heirs - such agreement against mohammedan law of inheritance - object of agreement unlawful and same cannot be enforced - deceased presumed to have died intestate. - - here too counsel could not point out any reliable evidence in that regard. the cross-objection must therefore fail. b22, which must therefore fail under the mahommedan law. this instrument was properly executed as a will, and was held to be a good will of the lands in question. kaniz fatima, 13 all lj 110: (air 1915 all 486 (1) ) a bench of this court held that there was nothing illegal in..........the 1st defendant and his exertions for acquisitions in the name of mammad' were settled by that deed and properties divided among defendants 1 to 3 and plaintiffs 1 and 2 with immediate effect. it was agreed therein that properties not included in the deed belonged absolutely to the persons in whose name they stood and that no other party would have any claim thereto. clauses 6 and 7 of that deed (translated in english) recite as follows:'6...... it is resolved that properties not included herein but found is the name of any of us belong to such persons separately and that the others, among us shall not advance any claim thereto contrary to the document (of title)......7.........as more properties than what parties nos. 5 and 6 may get as their fair shares under the shariat in the.....
Judgment:

Madhavan Nair, J.

1. The appellants are defendants i to 3 in a suit for partition.

2. The plaint properties belonged to Mammad, who died on October 27, 1956. Defendants 1 to 3, and plaintiffs 1 and 2 are his children: On June 18, 1956, a deed of partition, Ext. 622, had been executed among Mammad and his children. Certain disputes 'regarding properties that stood in the name of the 1st defendant and his exertions for acquisitions in the name of Mammad' were settled by that deed and properties divided among defendants 1 to 3 and plaintiffs 1 and 2 with immediate effect. It was agreed therein that properties not included in the deed belonged absolutely to the persons in whose name they stood and that no other party would have any claim thereto. Clauses 6 and 7 of that deed (translated in English) recite as follows:

'6...... It is resolved that properties not included herein but found is the name of any of us belong to such persons separately and that the others, among us shall not advance any claim thereto contrary to the document (of title)......

7.........As more properties than what parties Nos. 5 and 6 may get as their fair shares under the Shariat in the acquisitions of the 1st party have been allocated to them under Schedule in the name of parties 5 and 6 and Schedule C in the name of the 5th party separately, it is resolved that if any properties be found in the name of the 1st party not included herein those properties can be claimed only by parties 2 to 4 as per the Shariat, that party No. 2 has no objection thereto, and that parties Nos. 5 and 6 shall cot claim those properties.........'

Party No. 1 in Ext. B22 was Mammad, parties Nos. 2 to 4 are present defendants 1 to 3, and parties Nos. 5 and 6 are plaintiffs 1 and 2 respectively.

3. The Court below has found items 1 to 3 and 8 of plaint A schedule and 1/8 share in item No. 1 of plaint B schedule to have belonged to Mammad at the time of his death. They are admittedly not included in, and therefore within the ambit of Clauses 6 and 7 of Ext. B22. Defendants 1 to 3 claim those properties absolutely under the above clauses, while the plaintiffs challenge the clauses as void and claim shares as on intestacy of Mammad. The Court below accepted the plaintiffs' case and decreed partition of 3/7 shares in Mammad's properties to them, with profits from date of suit. Hence this appeal.

4. The plaintiffs have filed a cross-objection claiming item No. 6 of plaint A schedule also to have belonged to Mammad at the time of his death and therefore partible in this suit. The Court below has repelled that claim as not been proved. Here TOO counsel could not point out any reliable evidence in that regard. The cross-objection must therefore fail.

5. The main controversy between the parties is about the effect of Clause 7 of Ext. B22. Shri Muttikrishna Menon contended the disposition therein to be testamentary in nature and being in favour of some of the heirs not consented to by the other heirs after the death of the testator void under the Mahomedan Law. That contention seems to us correct. Unlike the case of Hindu coparceners, no son can claim any interest in the properties of a Muslim in his life time, and the reference in the aforesaid clause to rights under the Shariat can only be to right of succession on Mammad's death. In paragraph 117 of the Principles of Mahomedan Law by Mulla, the learned author observes:

'A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator.' Ghulam Mohammad v. Ghulam Hussain, 59 Ind App 74 : (AIR 1932 PC 81):

There is no case that the plaintiffs, who are two of the heirs of Mammad, have, subsequent to Mammad's death, assented to the disposition under Clause 7 of Ext. B22, which must therefore fail under the Mahommedan law.

6. The learned Advocate-General, on the other hand, contended that the said disposition was not testamentary, because,

(1) the instrument is not styled a Will, but only a Bhagapathram (partition deed);

(2) the instrument has been registered only in Book No. 1 whereas a Will is always registered in Book No. 3;

(3) there is no power of revocation reserved in the instrument; and

(4) the other clauses in the instrument being admittedly non-testamentary, Clause 7 should also be construed likewise.

In our view, none of these points has any merit. Neither the name of the document nor the fact of its registration in a particular book of the Registry Office is of any importance in construing the nature and effect of the provisions therein. In Thakur Ishri Singh v. Baldeo Singh, 11 Ind App 135 (PC) an instrument that was named a deed of assignment was nevertheles construed to, be a Will; and in Krishna Rao v. Sundara Siva Rao, 58 Ind App 148: (AIR 1931 PC 109) the mere fact that a document was registered in a wrong book was held insufficient to outweigh the effect of its terms as a Will.

(6-A) If a particular provision in an instrument is testamentary in its expression, the fact that it has not been expressed to be revocable is of no consequence. 'The principal test to be applied is' observed Asutosh Mookerjee, J. in Sagar Chandra Mandal v. Dwarka Nath Mandal, 14 Cal WN 174, 'whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease.........Where the disposition is expressly stated to take effect after his demise it is a will.'

(6-B) Revocability is a characteristic of every testament, and not its condition. In Vynior's case, (1610) 8 Co. Rep 8oa (82a) Lord Coke observed:

'If I make my testament and last Will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable which of its nature is revocable.'

and in Walker v. Gaskill, 1914 P. 192 Sir Samuel Evans cited Williams on Executors to state unequivocally and without any Hmitatibn: 'It is also a peculiar property in a Will...... that by its nature it is in all cases a revocable instrument, even should it in terms be made irrevocable.'

(6-C) The legal effect of a particular clause in a document depends mainly on its own terms and not on the other clauses in a deed. The following passage in Jarman on Wills (8th Edn., p. 39) is instructive,

'......in the case of Deo d. Cross v. Cross, (1846) 8 QB 714, where an instrument in the form of a power of attorney was given by a person abroad, whereby he appointed his mother to receive the rent of his lands for her own use. Until he might return to England; or in the event of his death, he 'thereby assigned and delivered to her the sole claim to his lands', but her occupancy was to cease on his return: this instrument was properly executed as a will, and was held to be a good will of the lands in question. The Court was clear that there was no objection to one part of an instrument operating in praesenti as a deed, and another in future as a will.'

The dispositions in the other clauses of Ext. B22 made operative from the time of its execution may be gifts inter viyos; but that provided in Clause 7 thereof in regard to Mammad's properties to take effect on the death of Mammad can be testamentary only.

7. It was then contended that under Ext. B22 the plaintiffs have relinquished or agreed to relinquish their rights to share in Mammad's properties on his death, and Latafat Husain v. Hidayat Husain, AIR 1936 All 573 was cited to show that in the circumstances the plaintiffs are estopped from claiming them when succession opened. The passage relied on runs thus:

'There is nothing to prevent an heir from not claiming a share in the property which is devolved on him or from so acting as to estop himself from claiming it.

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 Mahomedan Law. In Mahomed Hasmat AH v. Kaniz Fatima, 13 All LJ 110: (AIR 1915 All 486 (1) ) a Bench of this Court held that there was 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 further held that the provisions of Section 6 T. P. Act did not in any way create a bar against the legality of such a contract......... Obviously, Section 6, T. P. Act cannot in terms apply to such a relinquishment. If the relinquishment is in the nature of a gift or transfer of a contigent right then of course it would be void under Section 6; but if it is merely an agreement or contract for not claiming contingent right of inheritance when succession opens in future, then the case would not be governed by the provisions of Section 6 at all.

The contract made by an heir for consideration not to claim a certain property cannot be said to be in any way illegal or forbidden by any law.'

With all respect, we cannot agree with the above observations. Section 23 of the Contract Act enacts that every agreement of which the object or consideration is unlawful is void, and also that the object or consideration of an agreement is unlawful if it is of such a nature that if carried out it would defeat the provisions of any law. Section 6 of the Transfer of Property Act prohibits a transfer of

'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.'

The ruling itself says that if the relinquishment be a transfer in present it would be within the inhibition of Section 6(a) . Transfer of Property Act; but draws a distinction that if it be an agreement not to claim in future it would be valid. We apprehend that such an agreement, if permitted, would render Section 6(a) of the Transfer of Property Act futile and must therefore be strictly within the mischief of Section 23 of the Contract Act.

8. In Abdul Kafoor v. Abdul Razack, AIR 1959 Mad 131 the above dictum has been expressly dissented with the observation:

'With all respect, we are unable to agree with the learned Judges who decided ILR 58 All 834 : (AIR 1936 All 573), that a distinction can be made between a case of actual relinquishment of the chance of inheritance and contract to relinquish it in future. In Lakshmi Narayana Jagannadha Raju v. Lakshmi Narasimha, ILR 39 Mad 554 : (AIR 1916 Mad 579) it has been held that a contract for sale of expectancies is void in India under the provisions of Section 6 of the Transfer of Property Act and Section 23 of the Indian Contract Act. Tyabji, J., observed at p. 559 (of ILR Mad) : (at p. 581 of AIR):

'When property is conveyed in future there is said to be a transfer of property no less than when it is conveyed in the present; (Section 5 of the Transfer of Property Act); and the Legislature has provided that the chance of an heir-apparent cannot be the subject of conveyance in present or in future. An agreement, therefore, to convey in future such a chance cannot be considered a valid contract because it is an agreement to transfer that which the law says is incapable of transfer. The 'object' of such an agreement is of such a nature that if permitted, it would defeat the provisions of Section 6(a) of the Transfer of Property Act and Section 23 of the Indian Contract Act ......... It would be defeating the provisions of the Act to hold that though such hopes or expectations 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 the expectations, by saying that what he has purported to do may be described in a different language from that which the Legislature has chosen to apply to it for the purpose of condemning it.'

This decision has been approved by their Lordships of the Privy Council in Annada Mohan Roy v. Gour Mohan Mullick, ILR 50 Cal 929: (AIR 1923 PC 189). In view of the above decisions we hold that the release cannot be supported on the ground of its being a mere contract not to claim a share when succession opens.'

We agree with the Madras High Court in the above reasoning and hold that the plaintiffs are not bound by any relinquishment of or agreement to relinquish their share in the inheritance implied in Clause (7) of Ext. B-22.

9. The learned Advocate-General urged that Ext. B-22 is a 'family arrangement' and therefore the relinquishment made therein as part of such arrangement is binding on the plaintiffs who are parties thereto. A family arrangement is defined as

'an arrangement between the members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or preserving family properties or the peace and security of the family by avoiding litigation or by saving its honour.''

(Halsbury's Laws of England, 3rd Edition, Vol. 17, page 215). The dispute referred to in Ext. B-22 is one between the 1st defendant and Mam-mad only in regard to properties standing in the name of either. Their disputes had been adjusted finally in Ext. B-22 and some properties that were in the name of the 1st defendant conceded to be Mammad's and made the subject of division in Ext. B-22 along with some other properties of Mammad. Neither in the deed nor in the evidence is any other dispute referred to. Plaintiffs were therefore right in submitting that as regards them Ext. B-22 was a deed of gift of the properties specified in its Schedules B and C. and not a family arrangement. It is notorious that a testament is invariably designed to avoid a scramble among the heirs; but nobody ever said that all testaments are family arrangements. The test of a family arrangement is the give and take involved in the transaction. Evidence is that under Ext, B-22 the plaintiffs had nothing to give, nor to give up, but only to take. They cannot then be said to have been parties to a family arrangement.

10. All the contentions urged by the learned Advocate-General to save clause 7 of Ext. B-22 having failed, the disposition made therein has to be held void. It then follows that Mammad died intestate and the properties mentioned in paragraph 3 supra devolved on his heirs under the Mahomedan Law. The decree of the Court below is thus right.

Both the appeal and the cross-objection have no merits and are dismissed hereby with costs.


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