supreme court on Muslim’s :Right to inheritance

A Muslim is entitled to relinquish his property even before inheritance from the original owner but is precluded from re-claiming it, the Supreme Court has ruled.

A three-judge bench of justices Altamas Kabir, Cyriac Joseph and S S Nijjar said the doctrine of specs successions (renunciation of rights before accrual) which applies to the general law under the Transfer of Property Rights Act was not applicable in the case of Muslims.

“There is little doubt that ordinarily there cannot be a transfer of specs successions but in the exceptions pointed out by this court in Gulam Abbas’s case the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share.

“Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same,” Justice Kabir writing the judgement said.

The apex court passed the judgement while dismissing the appeals of certain aggrieved siblings of a Muslim estate owner Meeralava Rawther in Kerala’s Thodupuzha district.

Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. One of his sons Hassan Khani obtained a decree from the Kerala High Court that the entire property belonged to him as his late father had before his death bequeathed it to him through an oral agreement in 1982.

It was claimed the father bequeathed it to him since the other five siblings had left the family home to set up their own families and as part of the deal decided to relinquish all their rights on the estate after having taken some consideration.

However, the other siblings chose to challenge the purported agreement on the ground that Hassan cannot have any exclusive rights since under the Transfer of Property Act and the Mohammedan Law there cannot be any specs succession.

It was argued that a Muslim is not entitled in law to relinquish an expected share in a property.

Rejecting the arguments, the apex court said the binding force of the renunciation of a supposed right would depend on the attendant circumstances and the whole course of conduct of which it formed a part.

“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 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 successions,” the bench said while dismissing the appeal.

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