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what is the share of daughter ? what is spes-succession? what is the relinquishment deed? how all these things effect the partitions in Muslim family


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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 


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 


3.    It   is   the   specific   case   of   the   parties   that   Meeralava 

Rawther   helped  all   his  children   to  settle   down  in   life.  The 


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.

(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 16 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?

posted Aug 2, 2011 6:51 PM by MURALI MOHAN ,MANDAGADDI   [ updated Aug 2, 2011 6:55 PM ]

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