Kallobai and another vs Babukhan and others

Prakash Shrivastava, J.

This Second Appeal was admitted on following substantial questions of law:

Whether no consent of other co-sharers was required in law when the Will was only for 1/3rd share of the property?

Whether on the facts proved in the case, the plaintiffs are entitled to 1/5th share in the suit property?

Learned Counsel for the appellant did not press the second question of law and confined his arguments to the first question only by giving up second question.

This is the plaintiffs appeal. Appellants are the daughters of Munawar and respondents No. 1 to 3 are his sons and LRs No. 1 to 4 are sons of deceased defendant Chitarkhan. The appellants had filed a civil suit raising the plea that Munawarkhan had � share in the land admeasuring 7.05 hectares described in para-1 of the plaint. Munawar out of his share had bequeathed the land of Survey No. 2658 and 2660 admeasuring 0.99 hectares to the appellants by a registered Will dated 2-5-1987, therefore, they claimed to be the owners of the said land by virtue of Will and in respect of remaining land of Munawar, they claimed 1/5th share each. Therefore, the suit was filed for declaration of title to the extent of the land covered by the Will and declaration and partition for the remaining land.

Respondents/defendants had opposed the suit and questioned the Will.

The trial Court by the judgment dated 11-3-1991, held that the alleged Will was proved, but, on the basis of such a Will, the appellants had no right, since the Will was ineffective for want of consent of the respondents who are the other heirs of Munawar. The trial Court held that the appellants had no right on the basis of the alleged Will, but, they were held entitled for 1/6th share from the property of Munawar.

In appeal, the Lower Appellate Court affirmed that on the basis of Will in question, the appellants did not receive any right. The Lower Appellate Court held that under the Mahomedan Law, son gets double share in comparison to the daughter. Accordingly, the Lower Appellate Court partly modified the decree of the trial Court holding the appellants entitled to 1/8th share each.

Learned Counsel appearing for appellants submitted that since the property to the extent of 1/3rd share was bequeathed by Munawar, therefore, consent of other heirs was not necessary. He further submitted that section 117 of Mulla''s Principles of Mahomedan Law should be read together with section 118 and in such a case the consent was not necessary and the appellants have lawfully received the land of Survey No. 2658 and 2660 under the registered Will executed by Munawar.

As against this, Learned Counsel for respondents submitted that since the Will was in favour of some of the heirs of Munawar, therefore, the consent of other heirs was necessary and such a Will has no effect in terms of section 117 of Mulla''s Principles of Mahomedan Law.

Learned Counsel for appellants in support of his submissions has placed reliance upon the judgment reported in the matter of AIR 1928 307 (Rangoon) , Yasin Imambhai Shaikh (deceased by L.R.''s) Vs. Hajarabi and Others, , Abdul Manan Khan Vs. Mirtuza Khan and Others, ; whereas, Learned Counsel for respondents has placed reliance upon the judgment reported in the matter of Narunnisa vs. Sheik Abdul Hamid, AIR 1987 Kar 222.

Section 117 of Mulla''s Principles of Mahomedan Law deals with bequest to an heir and provides as under:

Bequests to heirs -- A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.

Explanation -- In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the Will, but to the time of the testator''s death.

Section 118 deals with limit of testamentary power, which reads as under:

Limit of testamentary power. -- A Mahomedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator.

A perusal of sections 117 and 118 indicate that the two sections operate in different fields. Section 117 is attracted when bequests is to an heir, whereas, section 118 operates and deals with bequests in general. Section 117 which specifically deals with the bequests to heir does not provide that a Mahomedan can bequest to an heir up to legal third without consent of his other heirs.

In the present matter, since the bequest was by Munawar in favour of the appellants, who are the daughters of Munawar and are his heirs, therefore, in such a case, the principles enumerated in Para 117 will be attracted which specifically applies to the bequest to heirs and the general principle mentioned in Para 118 will not be attracted. Mahomedan law does not permit testator to interfere, by Will, with the course of devolution of property according to law among his heirs, but he is permitted to give by Will to a stranger to the extent of legal third. Therefore, Will by Munawar in favour of the appellant in the absence of consent by other heirs will not confer any right in favour of the appellants, not even to the extent of legal third.

The above view is supported by the Division Bench judgment of Karnataka High Court reported in the matter of Narunnisa vs. Sheik Abdul Hamid, AIR 1987 Kar 222 wherein the Karnataka High Court relying upon the earlier judgment of Privy Council, held that:

The legal position is made clear by the judgment of the Privy Council in Salayjee vs. Fatimabi, AIR 1922 PC 391.

"The Mahomedan Law does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and the burden of proving the consent of a particular heir is upon the legatee", (head note). To the same effect is the decision in AIR 1932 81 (Privy Council) .

"Under the Hanafi law a bequest to an heir is invalid unless consented to by the other heirs after the testator''s death."

"9. Mr. A.A.A. Fayzee, in his book, "Cases in the Mohamedan Law of India and Pakistan" in the Chapter " Gifted Will Compared" has extracted the following passage from the judgment in Ranee Khujooroonissa vs. Mussammut Roushun Jehan, (1986) 3 Ind. App 291.

"The Policy of the Mahomedan Law appears to be to prevent a testator interfering by Will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger". (Page 308).

"10. In AIR 1944 139 (Oudh) it is held; "Under the Mahomedan Law one of the heirs may consent to a Will and as far as he is concerned it will be held to be valid and none of his heirs can challenge it subsequently". (Head note-d).

"11. In Rahummuth Amal vs. Mohammed Mydeen Rowther, (1978) 2 Mad LJ 499 the Court was dealing with a case, where the bequest was to an heir coupled with a bequest to a non-heir; after quoting a few decisions on that point, the Court observed thus;

"13. xxxx xxxx xxxxx.

No doubt, as had already been pointed out, the bequest to an heir coupled with a bequest to a non-heir has to be reconciled as far as possible and the totality of the instrument cannot on a hypertechnical ground be rejected in toto. If this is the method by which such an instrument has to be understood and interpreted then it should be held that the bequest to the first defendant who is an heir in this case is not valid, because it is against the personal law, but insofar as the bequest to a non-heir, namely the second defendant is concerned, it would be operative to the extent of a third of the estate of Seeni Rowther."

(underlining is ours).

"12. The well established position, in our opinion, is that a bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. That it is so is clear from the following enunciation in Mahaboobi vs. Kempaiah (Second Appeal No. 99/150-51); AIR 1955 Mys NUC 705;

"A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. But a bequest of more than the legal third can be validated by the consent of the heirs; and similarly a bequest to an heir may be rendered valid by the consent of the other heirs. The limits of testamentary power exist solely for the benefit of the heirs and they may if they like forego the benefit by giving their consent". (Head note-C).

(Underlining is ours).

Learned Counsel for the appellants has placed reliance upon the judgment of E.C. Jeeva (supra), but the said judgment does not help him, but it supports the view taken by this Court above. In the matter of E.C. Jeeva (supra), it has been held that:

It is quite clear that the right of adult Mahomedan heirs to the unrestricted enjoyment of the property they inherit is unassailable. A Mahomedan testator cannot by a testamentary disposition reduce or enlarge the shares of those who are entitled to inherit. Here the will, not only purports to limit the right to enjoyment of the outside one-third, devoted to charity, but deals with the right to the unrestricted enjoyment of the remainder of the estate. The principle of the unrestricted enjoyment of heirs of the property they inherit was specifically recognized by the Privy Council in the case of Ranee Khujoornnissa vs. Mt. Roushan Jehan (2). The Privy Council there said:

The policy of the Mahomedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion as much as a third to a stranger.

The reliance of the appellants on Single Bench Judgment of Bombay High Court reported in the matter of Yasin Imambhai Shaikh (supra) is also misplaced, since in that case effect of section 117 has not been considered. The judgment of Single Bench of Patna High Court in the matter of Abdul Manan Khan (supra) also does not help the appellants, since, in Para 65 of the said judgment, even, the learned Single Judge of Patna High Court has recorded that sections 117 and 118 operates in two different field, but in a given case, both may have to be read together. Since the present case is squarely covered by section 117, therefore, there is no question of reading it along with section 118. In Para 69 Patna High Court found that the provision is for obtaining consent of heirs in respect of a Will to a stranger in excess of 1/3rd.

It is also worth noting that Madras High Court in the matter of Sajathi Bi Vs. Fathima Bi, A.S. Noordeen, Zaina Bi, Moinuddin, Nawazuddin and Syndicate Bank, placing reliance upon section 117 of Mulla''s Principles of Mohamedan Law, has taken a view that bequest to heir is not valid unless other heirs consent to the bequest after death of the testator.

Thus, in view of the aforesaid position in law I find that the Will executed by Munawar in favour of the appellants is ineffective. Since the other heirs have not consented to the same. Thus I find no error in the conclusion of the Courts below that the Will in question does not confer any right to the appellant.

The appeal is accordingly dismissed.