The main legal point established in the judgment is the voidability of a testamentary disposition under Mahomedan Law if not consented to by all heirs after the testator's death, and the inapplicability of S.23 of the Contract Act and S.6 of the Transfer of Property Act to such dispositions.

1. The appellants are defendants 1 to 3 in a suit for partition.

2. The plaint properties belonged to Mammad who died on October 27,1956, Defendants 1 to 3 and plaintiffs 1 and 2 are his children. On June 18,1956, a deed of partition, Ext. B22, had been executed among Mammad and his children. Certain disputes regarding properties that stood in the name of the 1st defendant and his exertions for acquisitions in the name of Mammad were settled by that deed and properties divided among defendants 1 to 3 and plaintiffs 1 and 2 with immediate effect. It was agreed therein that properties not included in the deed belonged absolutely to the persons in whose name they stood and that no other party would have any claim thereto. Clause.6 and 7 of that deed recite as follows:

16- .... It is resolved that properties not included here in but found in the name of any of us belong to such persons separately and that the others among us shall not advance any claim thereto contrary to the document (of title) ....

7... As more properties than what parties Nos.5 and 6 may get as (heir fair shares under the Shariat in the acquisitions of the 1st party have been allocated to them under Schedule B in the name of parties 5 and 6 and Schedule C in the name of the 5th party separately, it is resolved that if any properties be found in the name of the 1st party not included herein those properties tan be claimed only by parties 2 to 4 as per the Shariat, that party No. 2 has no objection then to, and that parties Nos. 5 and 6 shall not claim those properties Party No.1 in Ext. B22 was Mammad, parties Nos. 2 to 4 are present defendants 1 to 3, and parties Nos. 5 and 6 are plaintiffs 1 and 2 respectively.

3. The court below has found items 1 to 3 and 8 of plaint A schedule and 18 share in item No.1 of plaint B schedule to have belonged to Mammad at the time of his death. They are admittedly not included in, and therefore within the ambit of Clause.6 and 7 of Ext. B22. Defendants 1 Co 3 claim those properties absolutely under the above clauses, while the plaintiffs challenge the clauses as void and claim shares as on intestacy of Mammad. The court below accepted the plaintiff's case and decreed partition of 3/ 7 shares in Mammad's properties to them, with profits from date of suit. Hence this

appeal.

4. The plaintiffs have filed a cross-objection claiming item No. 6 of plaint A schedule also to have belonged to Mammad at the time of his death and therefore partible in this suit. The court below has repelled that claim as not been proved. Here too counsel could not point out any reliable evidence in that regard. The cross-objection must therefore fail.

5. The main controversy between the parties is about the effect of Clause.7 of Ext. B22. Shri Kuttikrishna Menon contended the disposition therein to be testamentary in nature and being in favour of some of the heirs not consented to by the other heirs after the death of the testator void under the Mahomedan Law. That contention seems to us correct. Unlike the case of Hindu co-parceners, no son can claim any interest in the properties of a Muslim in his lifetime, and the reference in the aforesaid clause to rights under the Shariat can only be to right of succession on Mammad's death. In Para.117 of the Principles of Mahomedan Law by Mulla, the learned author observes:

"A bequest to an heir is not valid unless the othet heirs consent to the bequest after the death of the testator." (Ghulam Mohammad v. Ghulam Hussain (59 I. A. 74).

There is no case that the plaintiffs, who are two of the heirs of Mammad, have, subsequent to Mammad's death, assented to the disposition under Clause.7 of Ext. B22, which must therefore fail under the Mahomedan law.

6. The learned Advocate-General, on the other hand, contended that the said disposition was not testamentary, because

(1) the instrument is not styled a Will, but only a Bhagapathram (partition deed);

(2) the instrument has been registered only in Book No.1 whereas a W