IMPORTANT POINT
Implied consent to a bequest under Mohammedan Law cannot be inferred from silence or inaction; it must be established through affirmative acts.

JUDGMENT :

K. BABU, J.

1. The Regular Second Appeal is directed against the judgment and decree passed by the Additional District Court, Mavellikkara in A.S. No. 138 of 1998.

2. The plaintiff is the appellant. Respondents 1 and 2 are the defendants.

3. Sri. Basheer Rawther, the original plaintiff, instituted O.S. No. 260 of 1994 before the Subordinate Judge’s Court, Mavellikkara, seeking partition of the plaint schedule property, which is 32 cents of land situated in Re-survey No. 436/3 of Choonakara village and a building therein. The Trial Court decreed the suit allowing partition of the plaint schedule property. The First Appellate Court reversed the judgment and decree passed by the Trial Court.

4. The late Sri. Basheer Rawther instituted the original suit seeking partition and allotment of 7/16th share in the plaint schedule property. The property originally belonged to Sri. Mytheen Picha Rawather, the late father of Sri. Basheer Rawther.

5. The plaintiff is the son born in the wedlock between Sri. Mytheen Picha Rawather and his first wife. Defendants 1 and 2, Salma Ammal and Sri. Nazar are the second wife and son, respectively, of Sri. Mytheen Picha Rawather.

The plaintiff pleaded the following:

6. The plaint property originally belonged to Sri. Mytheen Picha Rawather. He died on 01.02.1978. The plaintiff and defendants are the legal heirs of late Sri. Mytheen Picha Rawather. On the demise of Sri. Mytheen Picha Rawather, the plaint schedule property devolved upon the plaintiff and the defendants, and they are the joint owners of the property. The plaintiff was residing on a different property even prior to the demise of Sri. Mytheen Picha Rawather and the defendants were residing with Sri. Mytheen Picha Rawather in the plaint schedule property. The plaintiff requested partition of the plaint property, but the defendants did not accede to the said request. The plaintiff is entitled to a 7/16th share over the property.

The defendants pleaded the following:

7. On 28.12.1965 Sri. Mytheen Picha Rawather had executed a registered Will. As per the said Will the plaint schedule property was bequeathed to defendant No. 2. Immediately after the death of Sri. Mytheen Picha Rawather, the plaintiff and the defendants sat together, and in the discussion which ensued, the plaintiff and the defendants expressly consented to the bequest with respect to their share and consented to mutation in the name of defendant No. 2 and thereby defendant No. 2 effected mutation in respect of the property and paid land tax to the same. The plaintiff was educated by his father, who had managed to secure him a job as a School Teacher and had also provided him with land and a building. The plaintiff is not a co-owner of the plaint schedule property, and he is not entitled to partition as prayed for.

The plaintiff filed replication stating the following:

8. He has no knowledge about the Will, and he had never consented to the Will, and for mutation with respect to the property as alleged. The plaintiff after filing the written statement, had made enquiries in the village office and realised that the property had been mutated in the name of defendant No. 2. Defendant No. 2 would have stagemanaged to get the property mutated in his name by influencing or misleading the revenue authorities.

Evidence

9. The plaintiff gave evidence as PW-1. Exts.A1 and A2 were marked on the side of the plaintiff. Defendants No. 1 and 2 were examined as DWs. 1 and 2, respectively. The Will dated 28.12.1965 was marked as Ext.B1. Exts.B2 to B4 series were also marked on the side of the defendants.

10. The Trial Court, as per judgment dated 27.03.1998, decreed the suit and passed a preliminary decree. The Trial Court recorded the following findings in the judgment:

(a) The burden of proving that the plaintiff had consented to the Will is on the defendants.

(b) There is no document to prove the express consent of the plaintiff to the said bequest.

(c) Silence is not consent as required by law.

(d) Ev