A Doctrinal Reconciliation: The Interplay of Absolute Ownership and Family Settlements in Mohammedan Law
I. Introduction
The recent decision of the Supreme Court in Mansoor Saheb (Dead) v. Salima (D) by LRs (2024 INSC 1006) has reignited a critical debate: To what extent can a Muslim owner distribute property during their lifetime?
The controversy is often framed as a conflict between the "unavailability of partition" and the "validity of family settlements." However, once the issue is correctly framed, the apparent friction between classical doctrine and modern jurisprudence dissolves. This article highlights that the 2024 ruling is not a restriction on power, but a mandate for juristic precision.
II. Absolute Ownership: The Bedrock of the Law
A foundational principle of Mohammedan law—affirmed by the Privy Council and the Supreme Court in Gulam Abbas v. Haji Kayyum Ali—is the maxim nemo est heres viventis (no one is the heir of a living person).
No Birthright: Unlike the classical Hindu Mitakshara system, there is no "Joint Family" property in which a child gains an interest upon birth.
Spes Successionis: Heirs possess only a "mere chance of succession."
Plenary Dominion: So long as a Muslim is alive, they are the absolute owner. Their right to alienate property inter vivos (during life) is unfettered by the expectations of heirs.
III. The Source of Confusion: Partition vs. Disposition
The 2024 Supreme Court judgment clarifies a structural limit: Partition presupposes pre-existing joint ownership.
Since heirs have no vested interest while the owner is alive, they cannot "partition" what they do not yet own.
In this sense, a son cannot demand partition from a living father. The Court’s observation that "partition is unknown to Mohammedan law" is a restatement of this fundamental truth.
IV. The Parallel Evolution: Modern Hindu Law
It is vital to note that even in Hindu Law, the "old law" has evolved. Post the Hindu Succession (Amendment) Act, 2005, and subsequent rulings like Vineeta Sharma v. Rakesh Sharma, the law moved to equalize rights. However, the concept of Individual/Self-Acquired property in Hindu law now mirrors the Mohammedan law position: if the property is self-acquired, the children have no birthright, and the father has an absolute right to dispose of it.
The "Partition" we see in modern Hindu families is often actually a Settlement of coparcenary property. By ruling as it did in 2024, the Supreme Court ensured that Mohammedan law does not accidentally adopt Hindu concepts of "Jointness" that are alien to its own framework.
V. Judicial Pillars: High Courts and the Bridge of Equity
Before the 2024 clarification, several High Courts (Madras, Andhra Pradesh, and Karnataka) upheld lifetime divisions by applying the Doctrine of Family Arrangement:
The "Peace" Doctrine: In K. Mahammad Ghouse Sahib v. Jamila Bi, the Madras High Court held that family arrangements are binding as contracts to maintain family peace.
Statutory Harmony: The Karnataka High Court has noted that "Settlement Deeds" are religion-neutral instruments under the Stamp Act, allowing Muslims to distribute property effectively.
VI. The Apex Court’s Approval of Family Arrangements
Crucially, the Supreme Court has consistently leaned in favor of Family Settlements, even for Muslims. In the landmark Kale v. Deputy Director of Consolidation (1976), and later in Hafeeza Bibi v. Shaikh Ramatulla (2011), the Court established:
Favoring Harmony: Courts should lean against technicalities to uphold arrangements that bring about harmony.
Oral Validity: For Muslims, a family arrangement or a gift (Hiba) can be oral, provided the three essentials (Declaration, Acceptance, and Possession) are met.
VII. The Reconciled Proposition
The tension is resolved by this singular distinction:
"The law denies the heir the right to demand a partition, but it never denies the owner the right to make a distribution."
VIII. Conclusion: The Harmony of Law and Peace
The 2024 Supreme Court judgment in Mansoor Saheb is not a cage, but a clarification. It does not silence the voice of a Muslim owner; it simply asks that they speak the correct legal language.
The law does not seek to frustrate the heart of a parent who wishes to see their children settled, or a family that desires to avoid the bitterness of the courtroom. It merely insists that such noble intentions be clothed in the correct legal garment. By distinguishing between the forbidden "Partition" (which implies a right the heirs do not yet have) and the protected "Family Arrangement" (which honors the owner's desire for peace), the law achieves a beautiful equilibrium.
In the final analysis, the jurisprudence of the Apex Court ensures that the "Will of the Living" is not frustrated by the "Rules of the Dead." Whether under the evolved Hindu law or the classical Shariat, the modern legal spirit favors the Settlement over the Suit. In the silence of the law regarding "partition," we find the eloquent, plenary freedom of the living owner to provide for their family in peace.
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