Point of Law : Section 100 of CPC provides that, (1) Save as otherwise expressly provided in body of this Code or by any other law for time being in force, an appeal shall lie to High Court from every decree passed in appeal by any Court subordinate to High Court, if High Court is satisfied that case involves a substantial question of law.

JUDGMENT :

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.70 of 2015 dated 14.06.2023 on the files of the Court of the Additional District Judge, Tirur arose from decree and judgment in O.S. No.21 of 2021 dated 30.07.2015 on the files of the Court of the Subordinate Judge, Tirur.

2. The appellant herein is the plaintiff in O.S. No.21 of 2015 and the respondents are the defendants.

3. Heard the learned counsel for the appellant in detail on admission.

4. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.

5. The sum and substance of the case put up by the plaintiff is that, the plaint schedule properties originally belonged to Beeravunni alias Bappu Haji, the father of the plaintiff and defendants. During the lifetime of Beeravunni alias Bappu Haji, he executed Will deed No. 21/1997 and separated the properties held by him in favour of the plaintiff and defendants (i.e. his heirs). The execution of the will is not disputed by the plaintiff, but the case put up by him before the trial court was that in so far as the transfer effected by the Will, the plaintiff did not consent and as per the principles of Mahomedan law, consent of all the sharers are necessary to effectuate a Will.

6. The defendants filed written statement and contended that all the parties consented the Will after the death of the father and accordingly all of them got separate possession of their respective shares covered by the Will inclusive of the plaintiff. Therefore, the plaintiff also consented the will. Hence, in view of the operation of the Will, the properties had been held by the parties of the Will and in such a case, there is no necessity of partition.

7. The trial court recorded evidence and tried the matter. PW1 examined and Ext.A1 marked on the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B19(c) marked on the side of the defendant. Exts.C1 to C3 were also marked as Court Exhibits.

8. On meticulous analyzation of the evidence available, the trial court found that even though there is no documentary evidence to support the consent given by the plaintiff, the available materials including the deposition of PW1 established implied consent. Thereby the suit was dismissed holding that the suit properties were not partible. Even though appeal was preferred before the Additional District Court, Tirur, as A.S. No.70 of 2015, the same also got dismissed concurring finding of the trial court.

9. While canvasing admission of the regular second appeal, the learned counsel for the plaintiff submitted that a Mahomedan Will without consent of the sharers thereto is not legal and therefore the beneficiaries therein would not get any right or title acting on them. The learned counsel for the plaintiff relied on paragraph No.117 of Mulla’s Principles of Mahomedan Law, wherein it has been stated that a bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.

10. In this context, the legal question emerges is; how far a Mahomedan can dispose of his properties by a Will? In this connection, it is relevant to extract paragraph Nos. 117 and 118 of the Mulla’s Principles of Mahomedan Law :

117. Bequests to heirs A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.

A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent."

118. Limit of testamentary power A Mahomedan cannot by will dispose of more than a third of the surplus