ABDUL KADIR Vs. HAMEEDAMMA

JUDGEMENT

(1.) Deceased Mouthali Rowther had his wife, five sons and five daughters including plaintiff and defendant. He owned 2 acres 19 cents of landed property including plaint Schedule.5 cents. In 1962 he executed and registered Ext.A1 will bequeathing properties in favour of five sons and two daughters as well as in favour of some of the grand children. A life estate was created in favour of the wife also. Plaint Schedule.5 cents was given to the plaintiff and a larger area was given to the defendant. Both of them accepted and acted upon the document after the death of the father. The suit for declaration of title and recovery of possession was resisted by the defendant on the ground that the will is invalid. The contention was negatived and the suit was decreed by both the courts. Defendant appealed.

(2.) Invalidity of the will is raised on the ground that is exceeded the permissible one third and the heirs have not given consent after the death of the testator. It is also stated that the will has not taken effect. But I do not think that there is any force in the contention that the will has not taken effect. By Ext.A4 the appellant accepted the will and derived benefits under it. By Ext.A2 plaintiff purchased the life estate of the mother over the suit property and came by possession. There is evidence of acceptance by other heirs also. Execution of the will is not disputed and it is further amply proved by the evidence also. S.68 of the Evidence Act may not strictly apply to a Mohammadan will. A Mohammadan will need not be in writing. It can be verbal also. Even if it is in writing it does not require to be signed. Even if signed it does not require attestation. That does not mean strict proof is not required in case of dispute. When execution is admitted and contents of the will are not in dispute the question of genuineness cannot be challenged especially when that fact is also proved. Therefore the only question that remains to be considered is the validity.

(3.) In this case the bequest was to heirs and those who are not heirs. Under Mohammadan Law a bequest to heirs is not valid unless the other heirs consent to the bequest after the death of the testator. But even without the consent of all the heirs, a single heir or more than one could consent so as to bind his or their share. Bequest to persons who are not heirs is permissible to the extent of the one third of the assets from the surplus after payment of the funeral expenses and debts even without consent of the heirs. At last two third of the assets must be there for the heirs to inherit after death of the testator. The principle behind is that a testator cannot bequeath his properties so as to disinherit his heirs without their consent after his death. That means no bequest of a Mohammadan could take effect to any extent if it is in favour of his heirs, and no bequest in favour of strangers could take effect for more than one third, unless consented to by the heirs after his death. In this case the bequest is in favour of heirs and strangers and it is for the whole assets of the testator. Then except for the bequest limited to one third of the assets of the testator in favour of strangers, consent of the heirs after the death of the testator is necessary to validate the same. Absence of such consent is the plea. If there is absence of consent the bequest will abate rateably. In deciding whether a person is or not an heir, the crucial time is not the date of execution of the will, but the time of testator's death. Though creation of a life estate is not repugnant to the Mohammadan Law, the interposition of a life estate under a testamentary bequest must be deemed to be a testamentary disposition of the entire property to the exclusion of the legal heirs and as such an independent disposition of the property to the exclusion of the heirs. Therefore, in such a case also it is necessary to prove, for the validation of the bequest, that the disposition of the life estate was consented to by the heirs after the death of the testator. Otherwise the legacy will abate rateably because that is the legal effect when the bequest exceed the legal limit and heirs refuse consent. (See Anarali v. Omar Ali (AIR (38) 1951 Cal. 7).