A.V. Chandrashekara, J.

1. Plaintiff of O.S. No. 113/98 which was pending on the file of the court of II Addl. Civil Judge (Jr. Dn.), Belgaum, is before this Court by filing an appeal u/S. 96 of CPC. Suit filed by him for the relief of partition and separate possession of an immovable urban property bearing CTS No. 340 measuring in all 138.79 sqmts in the city of Belgaum, has been decreed in part granting 4/9th share only to the plaintiff and 2/9th share + 1/3 share to defendant No. 1-Tabassum. It is this judgment and decree which is called in question on various grounds as raised in the appeal memorandum amongst other grounds.

2. Appellant is the plaintiff in the said suit. First respondent is the first defendant and remaining respondents herein are the defendant Nos. 2 to 6 in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

3. Facts leading to the filing of the suit before the trial Court in O.S. No. 113/98 are as follows:

"Khatunbi was the mother of plaintiff and first defendant and deceased Mohammed Yusuf who was the husband of defendant No. 2 and father of defendant Nos. 3 to 6. Suit schedule properties in question belonged to Smt. Khatunbi and she died on 14.04.1997. The husband of the second defendant and father of deceased Nos. 3 to 6 predeceased his mother. Hence, Ashraf is the only surviving son of first defendant and Tabassum is the only surviving daughter of Smt. Khatunbi. After the death of Khatunbi, Mohammad Ashraff had inherited 2/3 share and Tabassum has inherited 1/3 share. In this regard he had requested for partition and separate possession of his 2/3 share. Said suit was contested by first defendant alone claiming 1/3 share on the basis of the Will stated to have been executed by her mother on 08.03.1997 and 2/9 share by virtue of inheritance. Said stand has been accepted by the trial Court and the contention of the plaintiff has not been accepted in totality and therefore the plaintiff is granted only 4/9 share. Defendant Nos. 2 to 6 had remained ex parte before the trial Court. On the basis of the above pleadings the following issues have been framed by the trial Court.

ISSUES

1) Whether plaintiff proves that he is entitled for partition and separate possession of 2/3rd share in the suit property?

2) Whether defendant proves that she is the absolute owner of the suit property by virtue of the Will executed by her mother?

3) Whether defendant proves that the suit is bad for non joinder of necessary parties?

4) Whether plaintiff proves that the defendant making attempt to alienate the suit property?

5) What order or decree?"

4. Plaintiff is examined as PW1 and has got marked 25 exhibits. First defendant is examined as DW1 and one Nasirahmed Abdulla Kinikar as D.W.2 apart from getting 4 exhibits got marked on behalf of the first defendant. Ultimately, issue Nos. 1 and 2 have been answered partly in the affirmative and issue No. 4 in the negative and consequently suit is decreed in part granting 4/9th share to the plaintiff and 4/9 and 1/3 share to the first defendant. It is contended before this Court that a Will executed in favour of an heir will not have binding force unless other heir's consent and in this regard Sec. 117 of Mohammadan Law is relied upon by the learned counsel for the appellant. It is also contended that if a Will is executed by a Mohammadan in favour of a non heir it is totally invalid unless it is consented to by other heirs and that such consent will bind the share of consenting parties only.

5. It is vehemently argued that even if Will is stated to have been executed by Khatunbi in favour of Tabassum is proved, it does not confer any right on her as Ashraff has not consented for the bequest so made by Khatunbi. Learned counsel for the respondent has supported the judgment of the trial Court. After going through the records and pleadings the following points arise for consideration of this Court.

"1) Whether the trial Cou