Lord Phillimore :-

The dispute in this case arises in the course of the administration of the estate of a wealthy Mahomedan, who died on the 25th February, 1907, having left a will dated the 15th June, 1903, which was admitted to probate on the 18th March, 1908. By that will he left his only son, the defendant in this suit and the present appellant, his executor, and he gave him certain powers and professed to entitle him to a commission of 10 per cent, on the proceeds of the sale of all his estate. That provision is twice over expressed, but substantially the effect is the same on the two occasions. He also instead of reserving, as by Mahomedan law he could, one-third of his estate for his general disposition reserved somewhat less - one-fourth, and with regard to that fourth he directed the executor, whom he described also as "executor and trustee" to pay certain charitable legacies amounting to Rs. 13,700, directing at the same time that none of his heirs or any other persons should be entitled to have any right to claim an account of his disbursements from the executor, and with regard to the balance of the fourth share he gave it to the executor to spend or to dispose of in such manner as to him should seem fit and proper. This has been treated in both Courts as a legacy of the residue of the fourth share to the defendant, the present appellant.

There were various heirs, widows and children, by various families. The plaintiff and respondent now, a widow lady, was the eldest sister and of the same full blood as the defendant, appellant.

In 1917 she instituted this suit alleging that the two provisions for the benefit of her brother, namely, that giving him 10 per cent., and that giving him the balance of the fourth share were contrary to Mahomedan law. It appeared in the course of the suit, if it had not appeared before, that several of the heirs had agreed nevertheless to the appellant retaining his interest, as, according to Mahomedan law, they could, but there remained the plaintiff, and there remained three minor children, and the contest in the suit was with regard to the plaintiff. 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 therefore, when it appeared in the course of the suit that the other heirs had agreed, the only contest was as regards the plaintiff and the three minors. As regards the three minors there could be no question of their consent and the dispute therefore turned on the question whether the plaintiff had consented or not.

Now the burden of proving that consent was on the appellant, the defendant in the suit. Both parties tendered oral evidence, each putting his or her case more strongly than the trial judge thought was correct; the plaintiff averring that she had protested from the first and had been put off by a promise that she should have her proper share (this the trial judge did not accept); the defendant averring on the contrary that he had made quite clear to the plaintiff what the provisions of the will were, and the plaintiff, regarding him as the only male in the house, had expressed not only her consent but her pleasure that he should have this benefit. With regard to that the trial judge found that there was oath against oath; that there was no corroboration, the only other person present being the husband of the plaintiff, who was by this time dead, and, in the end, he was not satisfied that this consent was proved. He thereupon said that there was no direct evidence of explicit consent and the question turned upon whether there was implied consent, and the only two grounds of implied consent that be relied upon were delay and a certain transaction with regard to a loan and the interest upon it. On those materials he found in favour of the defendant that there was an implied consent.

The plaintiff appealed to the Chief Court, and the Chief Court reversing the dec