1. Heard the learned counsel for the parties. The parties are referred to by their rank before the trial court, for the snake of convenience.

2. The appellants were the defendants before the trial court. The facts are as follows:

One Fakrustab, a Mahomedan, had five children, namely, Nabeesab, Mohamed Mustafa, Mastan Sab, Mahaboobi and Basha. Nabeesab is said to have pre-deceased Fakru Sab. The Defendants, who were the widow and children of Nabeesab, were in the care and custody of Fakru Sab. He executed a will, dated 5-7-2001 bequeathing his properties in favour of the widow and children of Nabeesab.

For the sake of clarity family tree is reproduced along with the rank of the parties in the suit.

FAKRUSAB

Nabee Sab Mohammad Mastan Sab Mahaboobi Basha + Mustafa

Zulekabi (D.1 (a)) (Plaintiff) D.2 D.3 D.4

Samiulla Shafiulla

The plaintiff sought for division of the suit property on the footing that Fakru sab could not have bequeathed the properties to the defendants, in entirety. The suit was contested. The trial court held that the bequest was valid only to the extent of one-third of the extent of the properties and decreed the suit in part. The lower appellate court on appeal reversed the judgment and held that the suit properties could not be bequeathed without the consent of his heirs who were excluded from the bequest. It is that which is under challenge in this appeal.

3. This appeal was admitted to consider the following substantial question of law:

“ Whether the lower appellate court was justified in rejecting the will set up by the defendants, in entirety, having regard the principles of Mohammedan law that a bequest could be restricted to only One-third share?”

4. The learned counsel for the appellants would contend that the lower appellate court has not discussed the established principles of Mohammedan law in reversing the judgment and decree of the trial court. Though it is true that a bequest to an heir is not valid unless the other heirs consent to the request after the death of the testator. There is no bar to a Mohammedan to dispose of my will a third of the surplus of his estate after payment of funeral expenses and debts. It is bequests in excess of the legal third which cannot take effect, unless the heirs consent thereto after the death of the testator. The learned counsel would submit that these are principles laid down by authoritative judgments with reference to which several learned authors have consistently endorsed-attention is drawn to the commentary – Mulla’s Principles of Mohammedan law, Nineteenth Edition Para 117,118.

5. The learned counsel for the appellants would thus contend that the bequest having been restricted to one-third of the estate of Fakru Sab, in favour of the appellants, by the trial court was in accordance with law and hence seeks that the question of law be answered in favour of the appellants and the judgment of the lower appellate court be set aside.

6. The learned counsel for the respondents would, however, contend that in the presence of heirs, no bequest would take effect unless consented to by them. The contention that there was no bar for the testator to bequeath one-third of his estate, in respect of which consent of the heirs as not being necessary, would be if the bequest is to non-heirs and not to the testators heirs.

7. It is contended by the learned counsel for the respondents that there are three classes of heirs under the Hanafi Law of inheritance, namely, (1) Sharers, (2) Residuaries and (3) Distant Kindred. “Sharers” are those who are entitles to a prescribed share of the inheritance; “Residuaries” are those who take no prescribed share, but succeed to the “residue” after the claims of the shares are satisfied and “Distant kindred” are all those relations by blood who are neither Sharers nor Residuaries”

8. The learned counsel for the respondents draws attention to the Tables contained in tabular from, the lists of heirs, the share of each heir