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Judgment
M. Karpagavinayagam, J.—Sajathi Bi, wife of Anwar Basha, the appellant herein is the 5th defendant in the suit filed by the 2nd respondent
A.S. Noordeen.
The plaintiff/2nd respondent filed a suit in O.S.No.16 of 1986 for declaration that he was entitled to 10/48 shares in the amounts deposited by
Khader Mohideen, the brother of the plaintiff, after his death and for other reliefs contending that the Will executed by the deceased Khader
Mohideen in favour of Fathima Bi, another sister, was not true and valid.
Though there are five defendants including the lst respondent Fathima Bi(D4), the propounder of the Will, lst defendant-mother, defendants 2
and 3-brothers and 5th defendant-sister, the appellant herein remained ex parte.
The suit was contested by Fathima Bi, the 4th defendant alone contending that she had become entitled to the entire amount deposited by the
deceased Khader Mohideen in the Bank under the said Will, as the same was true, valid and effective. Ultimately, the suit was dismissed holding
that the Will is not valid, though the Will has been properly proved and as such, the plaintiff Noordeen would be entitled to 10/48 shares.
Aggrieved by the said judgment and decree, Fathima Bi, the 4th defendant filed an appeal in A.S.No.147 0f 1989 before the lower appellate
Court.
After hearing the counsel for the parties, the lower appellate Court partly allowed the appeal while confirming the judgment of the trial Court
holding that the plaintiff would be entitled 10/48 shares in the deposits made by deceased Khader Mohideen and as the other defendants remained
ex parte before the trial Court, having not chosen to contest the claim of the 4th defendant under the Will, the Will in favour of the 4th defendant is
valid to the extent of their shares and therefore, it can be taken that there is implied consent for the grant of their shares to the 4th defendant as per
the Will.
Though the lower appellate Court confirmed the decree in respect of the 10/48 share in favour of the plaintiff, the 4th defendant did not choose
to file any appeal. However, the fifth defendant Sajathi Bi has filed this second appeal challenging the finding by the lower appellate Court that the
consent of other defendants, namely mother, brothers and other sister can be inferred as they remained ex parte before the trial Court and as such,
the 4th defendant would be entitled to the entire balance share, as the Will in favour of the 4th defendant is valid to the extent of their shares.
While the second appeal was admitted, the following substantial question of law has been framed:
Whether the appellant (5th defendant) and the respondents 3 to 5 (defendants 1 to 3), other brothers and sister can be said to have impliedly
consented to the bequest made by Khader Mohideen, under Ex.B1 in favour of the first respondent (4th defendant), merely on the footing that
they had remained ex parte in the suit?
In elaboration of this substantial question of law, the learned counsel for the appellant/5th defendant would submit that the lower appellate Court
ought not to have decreed the suit in respect of the shares which the appellant and other defendants are entitled on the ground that there was a
consent on their part even without any evidence. According to him, remaining ex parte before the trial Court while decree is passed in the suit filed
by the plaintiff would not mean consent and on other hand, the 5th defendant and other defendants were represented by the counsel before the
lower appellate Court and on their behalf, the counsel argued in support of the plaintiff/2nd respondent and contended that the judgment of the trial
Court is correct.
I have heard the counsel for the respondents and also gone through the judgments rendered by both the Courts below.
On perusal of the entire records and on consideration of the submissions made by the counsel for the parties, I am of the considered opinion
that the finding in relation to the shares of the other defendants is clearly unjustified.
The suit relates to two deposits made by one Khaden Mohideen who was a retired Police Constable. Noordeen, the plaintiff is the brother of
Khader Mohideen. The lst defendant Zainab Bi is his mother. The 2nd defendant defendant Moinudeen and 3rd defendant Nawazudeen are his
brothers. Fathima Bi, the 4th defendant and Sajathi Bi, the 5th defendant/appellant are his sisters. This relationship is not disputed. It is also not
disputed that the said Khader Mohideen was a bachelor and had no issues and he died leaving behind the plaintiff and defendants, namely mother,
brothers and sisters.
If Khader Mohideen had died intestate, the male members will become entitled to 10/48 shares and the female members would be entitled to
5/48 shares. When this position was disputed by the 4th defendant on the strength of the Will executed by Khader Mohideen in favour of the 4th
defendant contending that she alone would be entitled to the entire shares, one of the brothers, viz., Noordeen filed a suit claiming that the Will is
not a valid one and as such, the plaintiff would be entitled to 10/48 shares.
While considering this aspect by framing appropriate issues, the trial Court has clearly held that the Will is not valid, since the bequest was
made by the deceased/testator only in favour of the 4th defendant without consent of other parties.
Admittedly, the parties being Muslims are governed by Mohammedan Law. A person cannot bequeath his entire properties excluding the right
of devolution of properties to his heirs. Mohammedan Law lays down that a Mohammedan can only bequeath his property by way of a Will in
respect of 1/3 of his estate which is the surplus after deducting all his debts and funeral expenses. If a bequest is made to a heir, it is not valid unless
the other sharers consent to the same.
A Mohammedan cannot by Will dispose of more than 1/3 of the surplus of his share after payment of funeral expenses and debts. Bequests in
excess of the share cannot take effect, unless the heirs consent to that and that too after the death of the testator.
Both the Courts below would correctly find that the Will is not valid as there is no consent and as such, the plaintiff would be entitled to 10/48
shares. However unfortunately, the lower appellate Court concluded that the Will is valid in so far as the shares of the defendants 1, 2 and 5,
inasmuch as there is implied consent. To conclude that there was an implied consent on the part of the defendants, the lower appellate Court
inferred the said consent as implied consent, since the other defendants remained ex parte.
Though it is stated in Section 117 of the principles of Mohammedan Law by Mulla that a bequest to a heir is not valid unless the other heirs
consent to the bequest after the death of the testator and any single heir may consent so as to bind his own share, mere silent by not participating in
the concerned proceedings and by remaining ex parte cannot be considered to be even as implied consent as stated in the very same book.
When a similar legal position was considered by the Karnataka High Court in Narunnisa Vs. Shek Abdul Hamid, it was held that the act of
remaining ex parte in the suit cannot be construed to be the consent and as such, the Will will become invalid. Assuming that express consent is not
the requirement of law, the implied consent can be inferred only by some act or dealings in respect of the property, which is sought to be
bequeathed. Neither inaction nor silence can be the basis of implied consent.
If the appellant/5th defendant''s actions were such by which such inference could be drawn, there may be justification to imply consent.
Similarly, if the 5th defendant has given some statement in a proceeding or held out a belief that she had relinquished her rights through some
activities, then the said material may afford a basis for implied consent.
That is not the case here. As a matter of fact, on behalf of the 5th defendant, the appellant herein, the matter was argued by her counsel
contending that the Will is not valid as there was no consent from any of the parties.
Under those circumstances, the finding rendered with regard to the shares of the other defendants by the lower appellate Court is wrong and
so, the same is liable to be set aside. Accordingly, the second appeal is allowed. The judgment and decree passed by the trial Court are restored.
No costs.