Judgment. - The property in suit originally belonged to one Meher Ali Tarafdar. Before his death he had executed a will on 15-10-1911. Although Meherali died in November following, probate was not obtained by his widow, Gour Bibi until 27-6-1935. By the will Meherali purported to create a life interest in favour of his widow Gour Bibi and after the determination of that life estate the property was to descend to all his legal heirs under the Mahomedan law. After having obtained probate Gour Bibi as executrix obtained permission from the Probate Court for sale of one of the properties which had been bequeathed by Meher Ali. After having obtained permission, Gour Bibi sold this particular plot to Wahed Hossain. The interest of Wahed Hossain was sold on 15-5-1940, in execution of a money decree obtained against him. The plaintiff Omar Ali was the purchaser and it is stated that he had obtained possession on 25-6-1941, through Court but as he could not get actual possession the present suit was started in March 1944, for declaration of title and for delivery of possession.

2. Meher Ali had three sons and one daughter. Defendants 1 to 5 are the heirs of Belat Ali, one of the sons of Meher Ali. Defendant 6 is the widow of another son Asmat Ali. Another son, Entaz is dead as also his son Usuf. It is not possible to ascertain from the present record as to who the heirs of Usuf were but it appears that the parties had proceeded on the basis that Usufs interest had vested in some or other of the defendants. Arifannessa, the only daughter of Meher Ali, had not been made a party.

3. The defence in the main was that the will being of the entire property left by Meher Ali and the disposition being in favour of one or more of the heirs of the testator the will did not convey any title and the executrix had no right to deal with the property. There were other allegations that the kobala executed by Gour Bibi in favour of Wahed Hossain had not been acted upon and that the latter had never possessed the suit land. Both the Courts below have decreed the plaintiffs suit. The present appeal is on behalf of defendant 2 alone, one of the sons of Belat Ali.

4. Under the Mahomedan law, a Mahomedan cannot by will dispose of more than one-third of his estate unless such bequest in excess of the legal third is consented to by the heirs after the death of the testator.

5. On behalf of the plaintiff, it is alleged in the first place that this provision in the Mahomedan law is not attracted on the facts of the present case as only a life estate was created in favour of the widow and after such life estate the property was to descend according to the Mahomedan law. No doubt, creation of a life estate is not repugnant to Mahomedan law. Achiraddin Ahmed v. Sakina, Bewa, 50 C.W.N. 59 : (a. I. R. (33) 1946 Cal. 288). But the interposition of a life estate of a certain estate under a testamentary bequest must be deemed to be a testamentary disposition of the entire property to the exclusion of the legal heirs. Mt. Amrit Bibi v. Mustafa Hussain, 46 all. 28 : (a.i.R. (11) 1924 all. 20). It is, therefore, to be proved that the heirs had consented to such a bequest.

6. On behalf of the plaintiff, it is contended that the sale in favour of Waned Hussain was by Gour Bibi after having obtained permission from the Probate Court in her capacity as executrix to the estate of Meher Ali. Under S. 211, Succession Act, 1925, the executor to the estate of a deceased Mahomedan is his legal representative for all purposes and all the property of the deceased vests in him as such. This provision must be read along with the limitations which are imposed under the Mahomedan law on the rights of a testator to dispose of his properties. Reference may in this connection be made to the following passage in Mullas Mahomedan law, Edn. 13, p. 31:

"But since a Mahomedan cannot dispose of by Will of more than one-third of what remains of his property after payment of his funeral expenses and debts

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