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Judgment
We agree with the conclusion arrived at by Mr. Justice Sadasiva Aiyar in this case on the ground that a transfer of an expectancy of this kind is
not permitted by the Muhammadan Law. That was decided in accordance with the opinion of the numerous law officers consulted in Mussammat
Kanum Jan v. Mussamat Jan Beebee (1827) 4 S.D.A. 210. cited at p. 89 of the Macnaughten''s Principles and Precedents of Muhammadan Law
is to the same effect. This view has also been taken by the text writers on Muhammadan Law (Sir Roland Wilson''s Digest of Anglo-Muhammadan
Law, page 268, and more particularly Volume II, pages 50 and 51 of the 3rd Edition of Mr. Ameer Ali''s Muhammadan Law where the subject is
more fully dealt with). Mr. Tyabji''s Principles of Muhammadan Law is to the same effect. On the other hand, reliance has been placed mainly on
the decision of the Privy Council in Mussammat Hurmutool-Nissa Begam v. Allahdia Khan (1871) 17 W.R. 108 by which Mr. Justice Spencer
appears to have been mainly influenced in dissenting from the conclusion come to by Mr. Justice Sadasiva Aiyar. On examining that case, we do
not think that their Lordships intended to lay down that a Muhammadan could renounce his rights of inheritance before that right had become
vested on the death of the person to whom he was entitled to succeed. In that case there had been very great delay in putting forward the plaintiff''s
claim to succeed as heir of the deceased and their Lordships observe at page 112,"" They may further remark that, according to the Muhammadan
Law, there may be a renunciation of the right to inherit and that such a renunciation need not; be express but maybe j implied from the ceasing or
desisting from prosecuting a claim maintainable against another"". Having regard to the words "" right to inherit"" and the words ""prosecuting a claim
which claim would only arise after the Succession had opened, we think that these observations of their Lordships may be taken as dealing with a
renunciation after the right of inheritance has vested, and are not authority for the proposition that a prior renunciation is authorised by the
Muhammadan Law. Mr. Ameer Ali in the passage referred to deals with renunciation after the inheritance has vested.
Reliance has also been placed on a decision of this court reported in Kunhi Mamod v. Kunhi Moidin ILR (1896) M. 176. That decision has
been questioned by all the text-book writers who have since dealt with the subject. As pointed out in Wilson''s book, the recital that all the law
officers were not agreed in the case in Mussam-mat Kanum Jan v. Mussammat Jan Beebee (1827) 4 S.D.A. 210 is not accurate. Further, the
respondent was not represented and therefore the case was not so fully argued. The learned Judges also proceeded upon the footing that the right
of inheritance had vested. We are not prepared to accept this case as an authority for the proposition that under the Muhammadan Law a right of
inheritance can be renounced before it vests. The decision in Mussammat Kanum Jan v. Mussammat Jan Beebee(1827) 4 S.D.A. 210 has since
been referred to with approval by this court in the judgment of Benson and Sundar Aiyar, JJ. reported in Marangarni Rowthen v. Nagur Meera
Labbai (1912) 24 M.L.J. 258 and the same view appears to have been expressed by Sir Lawrence Jenkins, C.J. in Sumsuddin v. Abdul Husein
I.L.R (1906) B. 165 though the judgment in that case proceeded upon the construction of the provisions of the Transfer of Property Act. Reliance
has also been placed upon the decision, Muhammad Hashmat Ali v. Kaniz Fatima (1915) 13 A.L.J. 110. but there is no discussion of the
authorities in that case.
On the whole, we think that there is a large preponderance of authority in favour of the view that a transfer or renunciation of the right of
inheritance before that right vests is prohibited under the Muhammadan Law. The rules of Muhammadan Law are not affected by the Transfer of
Property Act and it is therefore unnecessary to consider whether this transfer or renunciation would not also be invalid under the provisions of
Section 6 of the Transfer of Property Act itself.
For these reasons, the Letters Patent appeal fails and is dismissed with costs.