Implied consent is not sufficient to validate a bequest to an heir under Mohamedan Law.

( 1 ) THESE two appeals arise out of a suit for partition in O. S 58/1975, on the file of the Civil Judge, Puttur (D. K. ). R. F. A. 37/1976 is filed by the fifth defendant and R. F. A. No. 72/1976 is filed by the first defendant. These appeals can be disposed of by a common judgment.

( 2 ) FACTS, in brief are, S. K. Abbas (plaintiff) filed a suit for partition claiming 2/12th share in properties in Schedule-A and B, annexed to the plaint. Properties in 'a' Shedule are irnmoveable properties ; properties in 'b' Schedule are moveables like utensils, he- buffaioes, bullocks, etc. Relationship between plaintiff and defendants, is not in dispute. Defendants 1, 2, 4 and 6 are plaintiff's brothers and defendants 3 and 5 are his misters. Shaikh Abdul gani, father of plaintiff and defendants, died on 29th November, 1973. On the basis of admitted relationship plaintiff claimed 2/12th share, which share, each of the sons of Shaikh Abdul Ghani would be entitled to in law ; Defendants 3 and 5, being sisters, would be entitled to 1/12th share each. Plaintiff sought for a decree in the above terms.

( 3 ) DEFENDANT-1 (Appellant) contested the suit ; his contention was, that Shaik Abdul Ghani had executed a will on 9-11-1973 in respect of item-l of 'a' Schedule ptoperties and therefore he was the sole heir or item,-l 'a' Schedule to the exclusion of others.

( 4 ) AT the hearing the learned Advocates, appearing for Appellants and respondents submitted that the parties 'being Sunnis' are governed by Hanafi school of Muslim Law. Defendants 3 and 5 sisters remained ex-parte. The trial court has held that their absence and non-contest implies consent to the Will executed by Shaik Abdul Ghani and therefore their rights to their respective shares, stand relinquished in favour of first defendant. Accordingly, the Court passed a decree, in the following terms : defendant I- 2/12th in item-ll of Schedule 'a' and in the compensation of items III to VI in Schedule 'a' and movables in 'b' schedule. 4/12th in item-l of 'a' schedule. (2/12th his own + 1/12th of defendant-3+1/12th of defendant-5 ). Defendants III and V- 2/12th in item-ll of Schedule 'a' and items III to VI of Schedule 'a' and like share in moveables in 'b' schedule. No share in item-l of 'a' Schedule. Plaintiff and Defendants II. IV. and VI- each entitled to 2/12th in Items-l and ii of 'a' Schedule and like share in compensation Re. Items III to VI of the same schedule, and moveables in 'b' Schedule.

( 5 ) THE trial Court has held that the will is executed by Shaikh Abdul ghani and he was in sound disposing state of mind. We see no reason to interfere with that finding. However, in the appeal filed by defendant -5, who has suffered an ex-parte decree, it is asserted that the Court-below was not justified in depriving her of her legitimate rights, by infering implied consent. It is said that the consent required for validating a bequest in favour of an heir must be specific and is not a matter of inference or conjecture. Mr. Hande, learned counsel for first defendant maintained that firstly, to the extent of one third, no consent is required and even it it is so required it need not be specific. It is said in the circumstances, defendant-5 must be held to have 'acquiesced' in the bequest and therefore, she cannot contend to the contrary. Similarly, in his appeal, the contention of first defendant is that he is entitled to absolute rights in item-1 of 'a' Schedule properties, exclusively. In respect of 'b' Schedule properties, the contention is that appellant/1st defendant was not in possession, some of them are stolen. Therefore, it is contended that the decree to that extent is liable to be set aside.

( 6 ) TWO questions arise for our consideration : they are :- (i) Whether the Will executed by shaikh Abdul Ghani on 9-11-1973 confers exclusive right on first defendant in respect of item-l in 'a' Schedule; is it legally valid without specific consent of other heirs ; what is