This is an appeal against the judgment and order dated 21.5.82 passed by the Additional District Judge, Kamrup, Gauhati in Probate Title Suit No.15 of 1963 (No.l of 1980) whereby the application for probate was dismissed.

The facts of the case may be briefly stated as under. The appellant-petitioner, Harmuj Ali Bora, filed an application for grant of probate of the will annexed to the petition in respect of land measuring 56 B. 2 K. 15 Lechas. The will was executed by his father late Gorni Bora who died on 30th April, 1961. Besides the appellant-petitioner, Gorni Bora left behind the following other heirs

1. Musstt. Samnur Bibi ... Wife

2. Md. Ali Akbar Bora ... Son

3. Md. Abed Ali Bora ... Son

4. Golbibi ... Daughter

5. Fulbibi ... Daughter.

The case of the appellant-petitioner was that the will was executed by his father with the consent of the two other sons, named above. It was duly registered and the consent of the wife as well as the two daughters had also been obtained by the executant.

An objection was filed to the application for probate on the grounds, inter alia, that no will was executed in favour of the appellant-petitioner; that the alleged wilt was not duly attested; that it was a forged one; that it was made without the consent of the other heirs which was against the principles of Mahomedan law. On the aforesaid grounds, it was contended that no probate could be granted to the appellant. The learned Additional District Judge framed a number of issues, examined five witnesses for the petitioner and one for the objector and on consideration of the facts and circumstances of the case the evidence on record and the submissions of the parties, held that the will was not valid as the consent of the other heirs to the execution of the will was absent; that even after the death of the testator the other heirs did not give their consent which was evident from, the fact that they filed objections against grant of probate; that the attestation by the two witnesses was not proved which according to it was an essential pre-requisite of a valid will under the Mahomedan law. The learned trial Court, therefore, decided all the issues (except issue No,4 which was not pressed) against the appeal a-it-petitioner and dismissed the application for probate. Against the aforesaid judgment and order the present appeal has been filed.

Mr A.H. Saikia learned counsel, appearing for the appellants, submits that the impugned judgment is not tenable in law; that the findings arrived at by the learned Additional District Judge are erroneous; that under the Mahomedan law attestation is not a necessary pre-requisite for a valid will that so far as consent of the other heirs to the bequest by will is concerned, even if it was found that consent of the other heirs was not proved, the bequest would be valid to the extent of one-third of the property, inasmuch as for bequest to that extent no consent is required under the Mahomedan law. It is therefore, submitted that the learned Court below ought to have held the will to be valid at least to the extent of one-third of the property of the testator. Also heard Mr. J.N. Sarma, learned counsel for the respondents-opposite parties. Mr.Sarma submits that bequest to an heir would be void altogether if it is made without the consent of the other heirs. The rule regarding one-third does not apply to such a case.

The first question that arises for consideration is whether execution of a will by a Mahotnedan is not valid unless it is attested by two attesting witnesses. In the instant case, the attestation was not proved and, therefore, the learned Court below held the will to be not valid. I have considered the rival submissions. My opinion, on this point, is as follows.

Mahomedan law does not prescribe any particular form of will. Wills may be made either verbally or in writing. No writing is required to make a will valid. Even an oral declaration is suffici­ent. If the will is in writing it need not be signed and

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