Abdul Kader Maricar vs Saraummal, & Ors.

Aggrieved over the dismissal of the suit for partition, the first

plaintiff has filed the present appeal. The parties are arrayed as per

their own ranking before the trial Court for the sake of convenience.

The Brief facts of the plaintiffs'' case is as follows:- Abdul

Razack Maricar had three wives and through his first wife he had

three daughters and two sons and the sons are the first and second

plaintiffs and the daughters are the defendants 5 and 6. The plaintiffs

4 to 9 were born through the second wife viz., Ummasi ammal. He

had a daughter viz., Sabiya Ummal, the third plaintiff. The third wife

is the first defendant and through her, he had four children viz.,

defendants 2, 3, 4 and 7. All the properties are the properties of

Abdul Razack Maricar. He died in December 1980. Under the Muslim

Law, widow viz., Saraummal/first defendant is entitled to 1/8 share

and the remaining estate shall be taken by the residuary heirs namely

sons and daughters in the ratio of 2:1. The deceased Abdul Razack

Maricar left a registered Will dated 28.5.1973 bequeathing his entire

properties in favour of the first defendant and the Will is not valid as

the sons and other co-sharers were not given any share. Therefore,

the suit was filed for partition.

The first defendant filed the written statement and the same

was adopted by the defendants 3 and 7. It is stated that the Will

dated 28.5.1973 is a perfect valid document and under the Will Abdul

Razack Maricar bequeathed all his properties in favour of the first

defendant and since then the first defendant was in enjoyment of the

same and the Will was executed with the knowledge and consent of

the legal representatives and even after the death of Abdul Razack

Maricar, the plaintiffs have given consent for the Will. It is also

stated that at the time of marriage of the first defendant with Abdul

Razack Maricar, he was 48 years old and the first defendant was 16

years old and at that time Abdul Razack Maricar had six sons through

his first and second wives and therefore, at the time of marriage

Abdul Razack Maricar assured that he would execute a Will in favour

of the first defendant in respect of his properties and pursuant to the

assurance given, the Will was executed and for the past more than

ten years, no objection was raised by the plaintiffs regarding the Will

and the properties are enjoyed by the first defendant and the

plaintiffs also had given consent after the death of the testator and

the suit is also barred by limitation.

On the basis of the above said pleadings, the following issues

were framed:

"1.Whether the suit is barred by limitation?

2.Whether the Will of Abdul Razack Maricar dated 28.5.1973 dis-entitled the plaintiff from claiming any right in the suit properties?

3.Whether the Will of Abdul Razack Maricar dated 28.5.1973 is valid only to the extent of 1/3 share of his properties?

4.Whether the first defendant has perfected her title to the suit properties by adverse possession?

Whether the plaintiffs are entitled to partition of the suit properties and if so, what are their respective shares?"

On the side of the plaintiffs, the first plaintiff was examined as

P.W.1 and 11 documents were marked as Exs.A.1 to A.11 and on the

side of the defendants, 4th defendant was examined as D.W.1 and no

document was marked as exhibit.

On the basis of the evidence and materials, the learned trial

Court has held that there was implied consent by the other legal heirs

for the Will dated 28.5.1973 executed by the Abdul Razack Maricar

other legal heirs also kept quiet for more than 20 years, therefore,

Will was valid and binding on others. Ultimately, the learned trial

Court has dismissed the suit. Aggrieved over the same, the present

appeal came to be filed by the first plaintiff.

The learned Senior Counsel appearing for the appellant

submitted that the property belonged to the father of the plaintiffs.

The first defendant is the third wife propounded the Will. The trial

Court has believed the implied consent. There is no evidence to show

that all the legal heirs have given consent. There is no pleadings in

that regard. The evidence as to the implied consent has to be

established. Absolutely, there is no evidence available on record to

prove that all other legal heirs have given consent unequivocal

intention. The alleged consent pleaded by the first defendant is not

established. The fist defendant has also not chosen to examine

herself. The learned trial Court without considering all these aspects,

dismissed the suit for partition. Hence prayed for allowing the appeal.

In support of his arguments the learned Senior Counsel has relied

upon the following judgments:-

Narunnisa v. Shek Abdul Hamid [AIR 1987 Karnataka 222]

Izzul Jabbar Khan Azisul Jabbar v. Chairman District Council KucheryWard Sooni District Chhindwara [AIR 1957 Nakpur 84]

Noorunnisa alias Pichamma v. Rahaman Bi [2001 (3) MLJ 141]

The learned Senior Counsel appearing for the Respondents

submitted that para 4 of the plaint itself is determinative for deciding

the case. The Will has not been attacked on the basis of the consent

in the entire pleadings of the plaintiffs. The defendants 2 to 9 remain

ex parte and plaintiffs 4, 6 to 9 have also not contested the suit.

Hence the suit was dismissed against them. Though all the plaintiffs

have filed the plaint, none of the plaintiffs have pleaded that there

was no consent to the Will. The time gap between the Will and the

suit itself proves the implied consent. The trial Court has considered

all other aspects and rightly dismissed the suit. If at all this Court

comes to the conclusion to decree the suit for partition, the first

plaintiff who is contesting the proceedings alone is entitled to share if

any. Hence prayed for dismissal of the appeal.

On the basis of the above pleadings, the points that arise for

consideration are:-

Whether the Will dated 28.5.1973 and Ex.A2 is valid?

Whether all the legal heirs have given consent for such Will?

Points 1 and 2:- The relationship between the parties is not

disputed. The fact that the properties belonged to Abdul Razack

Maricar is also not disputed. The Abdul Razack Maricar had executed a

Will dated 28.5.1973 bequeathing his properties in favour of his third

wife is also not disputed. But the only contention of the plaintiff is

that under the Muslim Personal Law, bequeath made in favour of one

person in respect of entire property is illegal and void. The testator

has no capacity to bequeath more than 1/3 rd share of his property

and any such bequeath cannot be made in favour of the legal heir.

Whereas it is the contention of the first defendant in the

written statement that the defendants 1 to 5 were alive at the time of

execution of the Will and with their knowledge and consent Will has

been executed. The Will has been come into force after the demise of

the testator. Whereas having pleaded that all the plaintiffs have given

consent, the first defendant did not come forward to give evidence

before the Court and 4 th defendant was examined as D.W.1. In the

cross-examination he has admitted that the defendants have not

given consent to the Will and he has also given evidence to the effect

that the plaintiffs gave consent to the Will in the presence of the

witnesses. Whereas the said aspect has not been pleaded in the

written statement and only for the first time introduced in the cross-

examination of the D.W.1. No steps whatsoever has been taken to

prove the alleged consent by the plaintiffs in the presence of the

witnesses, by examining the independent witness.

It is well settled that a bequest to an heir is not valid unless

the other heirs also give consent to the bequest after the death of the

testator. Any single heir may consent so as to bind his own share and

a bequest to an heir either in whole or in part, is invalid, unless

consented to by other heir of heirs and whomsoever consents, the

bequest is valid to that extent only and binds his or her share. In this

regard Mulla Principles of Mohammedan Law 20 th Edition, at paragraph

117 reads as follows:-

"a bequest to an heir is not valid unless the

other heirs also consent to the bequest after the

death of the testator. Any single heir may consent

so as to bind his own share and a bequest to an

heir either in whole or in part, is invalid, unless

consented to by other heir of heirs and

whomsoever consents, the bequest is valid to that

extent only and binds his or her share. Neither

inaction nor silence can be the basis of implied

consent".

In the judgment reported in Noorunissa v. Rahuyaman Bi

and others [2001 (3) MLJ 141], it is held that

"a Mohamedan cannot bequeath more than

one third of his property and even with regard to

that one third he cannot bequeath it to his heirs.

If the bequest is to an heir it can be validated by

the consent of all the heirs after the death of the

testator and the bequest is in excess of one third

of estate cannot take effect unless such bequest

is consented by heirs after the death of the

testator".

In Sulaika Vivi v. Rameeza Bivi [2000 (IV) CTC 454] a

Division Bench of this Court in para 20 of the Judgment held as

follows:-

"20. When we come to the question about the

validity or invalidity of the said Will dated 20.1.1966,

on the ground that the first defendant was not

competent to give her consent on her behalf as well

as on behalf of the minors defendants 2 to 6 on the

date of the death of the testator, is concerned, when

we look into the position of law, we find that under

Mohamedan Law, it is well settled that a Mohamedan

can Will away only to an extent of one-third of his

estate and not beyond, and every Muslim who is

sane and rational is entitled to make a Will. When a

Muslim dies, his debts and funeral expenses are to

be paid first and thereafter out of the residue, only

one-third can be disposed of by the Will. Whether

the bequests exceeding the bequeathable third, will

take effect without the consent of the heirs, depends

upon the sect such as Shaafi, hanafi, etc., to which

the concerned Muslim belongs . As to whether the

consent should be obtained after the death of the

testator or before the death of the testator depends

upon the sect. As far as those persons who belong to

the Hanafi sect, it is certain that such consent must

be obtained after the death of the testator.

Reference can be had to Tyabji''s book of Mohamedan

Law, paragraph 579 C. It is also well settled that

where the bequests taken in the aggregate exceed

the bequeathable third and the heirs do not consent,

in Hanafi Law, bequest abate rateably. (Refer page

307 of outlines of Mohamedan Law, by ASAF

A.A.Fyzee", Second Edition.) The position with regard

to the consent varies with the other schools like Itna

Ansari and Ismaili Laws with which we are not

concerned. Therefore, it is clear that, for a Will by a

testator making a bequest of more than onethird of

the residue of his estate, the same would become

valid under Hanafi Law only after the consent of the

heirs of the testator is obtained after the death of

the testator."

Wherein the Division Bench of this Court considering the Hanafi law

the consent obtained after the death of the testator is valid to make

the Will valid in respect of more than 1/3rd share of his properties.

In Izzul Jabbar Khan Azisul Jabbar v. Chairman District

Council KucheryWard Sooni District Chhindwara [AIR 1957

Nakpur 84], a Division Bench of Nakpur High Court in para 8 of its

judgment held as follows:-

"8.It is however argued on the authority of Daulatram

v. Abdul Kayum, ILR 26 Bom 497 (B); Mahomed

Hussein Haji Ghulam Mahommed v. Aishabai, AIR

1935 Bom 84 (C) ; Ma Khatoon v. Ma Maya, AIR 1936

Rang 448 (D) and Fakir Mohammed Khan v. Hasan

Khan, AIR 1941 Oudh 25 (E) that the consent of the

heirs may be signified by conduct showing a fixed and

unequivocal intention. It would be impossible to

imply consent of the heirs unless it was shown that

they knew of the will, knew of its contents and

deliberately stood by and allowed the village to be

mutated in the names of the legatees, i.e., the

appellants in this case.

It may be mentioned that there is no evidence

whatsoever of the fact that the female heirs were at

all aware of the mutation proceedings. It is however

said that the publication of the notice in the tahsil

office and in the village was sufficient notice. In our

opinion it was necessary for the appellants to

establish something more than that in order to

persuade the Court to conclude from the inaction of

the female heirs that they knowingly allowed the

mutation to be made in favour of the appellants.

There is no evidence at all of this kind.

No doubt, respondent No.4, the father of appellant

No.1 and brother of appellant No.2 has stated that at

the funeral of Abdul Jabbar the daughters brought the

will and handed it over to him. That evidence is too

absurd to believe. Rejecting it, we find that there is

nothing from which it could be deduced that the

inaction of the female heirs was deliberate. Thus in

this case the necessary condition for inferring an

unequivocal intention on the part of the female heirs

to allow the legatees to take the entire property

under the will has not been satisfied. Thus, in our

judgment, the appellants cannot claim possession of

the entire property on the basis of the will."

In Narunnisa v. Shek Abdul Hamid [AIR 1987

Karnataka 222], a Division Bench of Karnataka High Court in its

Judgment at paras 13, 14 and 15 held as follows:-

"13.In the instant case, the Will is executed on

9.11.1973, suit is filed on 17.12.1973. The consent is

required to be given after the death. There is no such

document to establish the consent of the heirs. Being

a bequest in favour of an heir, it is invalid and does

not bind the share of the other heirs unless

consented. In this Court, Sri I.T.Rai, Counsel for

defendant No. 3, Ammajan, submitted that his client

does not object to the Will and she consents; so to

the extent of her 1/2th share in Item I of ''A'' schedule,

the bequest in favour of defendant 1 would be valid.

In other words, defendants I will get 2/12 + 1/12 =

3/12 in Item I of ''A'' schedule properties.

14.Coming to the share of fifth defendant, appellant

in R.F.A. No.37/1976, there is no evidence to

establish her consent. In this

@page-Kant226

regard the lower Courts'' conclusion is as follows:-

"24.xx xx xx

Even though the 5th defendant was aware of the

execution of Ex.D1 by her father in favour of the 1 st

defendant and is also aware of the filing of the suit by

the plaintiff but has kept quiet for a period of more

than two years without expressing her dissent to the

Will Ex.D.1. I am of the opinion that an inference has

to be drawn by her passive acquiescence that she had

consented to the bequest made in favour of the 1 st

defendant under Ex.D.1. I, therefore, hold that the 5th

defendant also must be deemed to have given her

consent for the bequest in favour of the 1st defendant

under Ex.D-1 by Shaik Abdul Gani Saheb and

therefore her share in Item I of the Suit ''A'' schedule

properties is also bound by the bequest made in

favour of the 1st defendant."

15.We find it difficult to approve this reasoning.

Assuming that express consent is not the requirement

of law, nevertheless, the implied consent can be

inferred only by some act or dealings in respect of the

property, which is sought to be bequeathed. In

Mulla''s Book, referred to above, we find the following:

"Silence not consent: Where a Will contained a

bequest excluding the female heirs and mutation of

names took place, it was held that consent of the

heirs could not be implied from mere silence on their

part at the mutation proceedings."

In any event there must be a consent of all the legal heirs

to prove the validity of the Will. P.W.1 also in his evidence

categorically denied any consent given by the plaintiffs either express

or implied to the Will executed by the father. When the parties

attacked the document specifically denies any consent, burden lies on

the defendant to establish the the factum of alleged consent given by

the plaintiffs either it is express or implied. The above judgment

clearly show that consent is a matter of evidence and it should be

established that the consent is unequivocal intention of the parties.

Therefore, it is the matter of evidence. Mere inaction or silence cannot

be the basis of implied consent unless unequivocal intention has been

established.

The plaintiffs have also issued a legal notice under Ex.A3

calling upon the defendants to effect partition contending that there

was no partition. The above notice also not replied. Similarly, the

evidence of D.W.1 in the chief-examination would show that he has

not spoken anything about the consent. Whereas in the cross-

examination he has admitted that even patta of the land continues to

be in the name of his grandfather and he has also admitted that

defendants have not given any consent to the Will even they are legal

heirs of their grandfather. If really all the legal heirs have given

consent either implied or express the defendant No.1 would have

effected mutation of records in Revenue Records. Whereas the

Revenue Records still in the name of original owner. These facts also

show that the alleged consent pleaded by the defendant cannot be

true. To make a Will except 1/3 rd share of the Mohammedan property

the consent of all the legal heirs are absolutely necessary. The

evidence of D.W.1 itself clearly indicate that there was no consent by

all the legal heirs. Therefore, the Will in its entirety is invalid as per

Muslim Personal Law. On the other aspects with regard to the

limitation and possession have not been canvassed and given up by

the parties.

Since the appeal is filed only by the first plaintiff though the

suit was filed by all the plaintiffs together, from the judgment of the

learned trial Court it could be seen that the suit against the plaintiffs

4, 6 and 9 was already dismissed during the trial. The plaintiffs 2 and

5 though contested the suit, they have not filed appeal. Only the first

plaintiff has filed the appeal. Since the consent has not been

established, mere delay in approaching the Court itself cannot be

construed as an implied consent. The judgment relied upon by the

trial Court itself clearly show that there must be evidence to prove

unequivocal intention of the parties to infer the consent. But

absolutely there is no evidence available on record. Therefore, this

Court is of the view that merely because the delay of 12 years in

coming to the Court for claiming partition, that itself cannot be a

ground to infer that there is a valid consent by other legal heirs.

Hence, the learned trial Court dismissing the suit is liable to be set

aside. The points are answered accordingly.

Since the first plaintiff alone filed the appeal and the other

plaintiffs have not preferred any appeal, this Court is of the view that

the first plaintiff is entitled to 14 shares in the suit properties and

accordingly preliminary decree is passed dividing the properties into

120 equal shares and allot 14 such shares to the first plaintiff alone.

As the other plaintiffs have not preferred any appeal and not

contested the suit the preliminary decree is restricted only in favour

of the appellant/first plaintiff. Accordingly, the appeal is allowed and

preliminary decree is passed in favour of the first plaintiff alone. No

costs.