Agreement to Sell Does Not Exclude Property from Matruka; Supreme Court Upholds Partition Share Rules Under Mohammedan Law

A bench of Justices Sanjay Karol and Prashant Kumar Mishra heard appeals challenging the Bombay High Court (Aurangabad Bench) judgment upholding a first appellate court decision on distribution of property left by the deceased under Mohammedan law. The appeals arose from rival claims over immovable property allegedly transferred by an agreement to sell during the lifetime of the deceased and later by sale deeds, and raised the question whether such agreements excluded the land from the deceased’s “matruka” for the purpose of intestate distribution.

The Court dismissed the appeals and affirmed the view taken by the First Appellate Court and the High Court that an agreement to sell did not vest title in the purchaser and therefore land subject to only an agreement remained part of the deceased’s estate for distribution. The Court reiterated established principles under the Transfer of Property Act and precedent and explained the rules of Mohammedan succession applicable to matruka property. The Court, in its reasoning, observed: “Since the Agreement to Sell has no value in the eyes of law, all the property that vested in Chand khan would become matruka property.” The judgment also noted the settled maxim “nemo dat quod non habet” and recorded that no person can transfer a better title than what they possess. The Court further expressed concern that “words are of indispensable importance” when translating lower court judgments into English.

Background The dispute concerned lands in Gut Nos. 107 and 126 that belonged to Chand Khan. After his death without issue, rival claimants — his widow (Zoharbee) and his brother (Imam Khan) — litigated entitlement to the estate as matruka. The defendant-respondent contended that a portion of the land had been transferred by an Agreement to Sell in November 1999 and subsequently conveyed by sale deeds to third parties, and that portions stood transferred even before the death. The plaintiff-contestant argued that an agreement to sell did not confer any proprietary right and that, at the time of death, the property still vested in the deceased and thus formed part of the matruka to be partitioned under Mohammedan law, entitling the widow to the prescribed sharer’s proportion.

At trial the civil court accepted evidence of agreements and some sale transactions and partly decreed the plaintiff’s suit in respect of the purchaser who did not contest proceedings. The First Appellate Court reversed the civil court on the larger question, holding the plaintiff’s suit maintainable and that rights under an agreement to sell would vest only upon execution of a registered sale deed; in the absence of conveyance title remained with the deceased and the property was divisible as matruka. In Second Appeal the High Court recorded that no substantial question of law arose but proceeded to examine the merits and sustained the appellate court’s conclusions. The Supreme Court endorsed the legal propositions in Suraj Lamp & Industries v. State of Haryana and related authorities that an agreement to sell does not create any interest in immovable property and that only execution of a registered sale deed transfers ownership. The Court relied on classical statements of Mohammedan inheritance law (including Mulla and Jamil Ahmad) and the Quranic rule prescribing sharers’ proportions, held that the property in question was matruka, and directed distribution in accordance with the settled rules of succession. The appeals were dismissed with no costs; pending applications stood disposed of. The Court also recorded its dissatisfaction with inaccurate translation of the trial court judgment and urged care in translating records for higher court review.

Case Details: Case No.: Civil Appeal Nos. 4516-4517 of 2023; SLP© Nos.15386-15387 of 2012; 2025 INSC 1245 Case Title: Zoharbee & Anr. v. Imam Khan (D) Thr. LRs. & Ors. Appearances: For the Petitioner(s): Advocates not indicated in the reported judgment For the Respondent(s): Advocates not indicated in the reported judgment