ABDUL KADAR Vs. PATHUMMA

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.) A Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts and bequests in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. Ext. B -3 bequest in favour of the first defendat who is the heir of Ayisumma is in excess of the legal third. That being the position, the Will can be validated by the consent of the other heirs.