ABDULKADAR Vs. PATHUMMA MOHAMMEDAN

JUDGEMENT

(1.) Plaintiffs 2 and 3 in O.S. 166 of 1982 of the Munsiff's Court, Kuthuparamba are the appellants. First plaintiff died. Plaintiffs filed the suit for partition claiming 2/5 shares in the plaint schedule property. Trial Court decreed the suit holding that Ext. B-3 will relied by the first defendant was not consented by the heirs after the death of the testator. First defendant filed A.S. 22 of 1986 before the Additional Sub Court, Tellicherry. The learned Additional Sub Judge allowed the appeal holding that Ext. B-3 will is valid and binding on the plaintiffs and defendants 2 to 10 and accordingly dismissed the suit."

(2.) The plaintiff schedule property admittedly belonged to Ayisumma. At the time of her death she was survived by her children Kunhayan, Kunhammad and Pathumma. She had a daughter Sainaba who had predeceased her. First plaintiff is the wife of Kunhayan and her children are plaintiffs 2 and 3. Kunhammad's widow is the second defendant and her children are defendants 3 to 7. Pathumma's only daughter is the first defendant. Defendants 8 to 10 are the children of Sainaba.

(3.) In the written statement first defendant contended inter alia that she had obtained the property as per Ext. B-3 registered will and that plaintiffs have no right to claim partition of the property. Plaintiffs' ease is that Ext. B-3 being a Mohamedan will can have validity only if the excluded heirs had consented to it after the testator's death. It is the case of the plaintiffs that there is no evidence that Kunhayan and Kunhammad had expressed their consent to Ext. B-3 will after death of Ayisumma and so Ext.B-3 cannot have any validity. Counsel for the first defendant pointed out that the evidence in the case de finitely discloses the fact that they had consented to Ext. B-3 will after death of Ayisumma. It is contended by the counsel that express consent as such is not necessary and as the evidence in the case shows that Kunhayan and Kunhammad had ratified Ext: B-3 by their course of conduct Ext. B3 cannot be considered to be invalid.