A bequest to an heir under Mahomedan Law is void unless consented to by other heirs after testator's death.

JUDGMENT : This is a defendant's second appeal arising out of a suit for possession and perpetual injunction pertaining to agricultural land situated in village Uncha, Tehsil Nimbahera.

2. The plaintiff-respondent Mst. Mumtaz Begam filed a suit out of which this appeal arises on 30-8-1989 alleging that the land in question belonged exclusively to her father Mehrab Khan, who died on 21-3-1957. It is alleged that Mehrab Khan had executed a will dated 17-6-1943 with respect to the property in question as also the other property in her favour. A copy of the will has been produced, and marked Ex. P-1. The plaintiffs case is that after Mehrab Khan's death she took possession of the land in question but on 20-6-1957 the defendant-appellant Furkan took forcible possession of the same. Consequently she instituted the present suit in the Court of Sub-Divisional Officer, Nimbahera, for possession of the land and also for perpetual injunction restraining the defendant from interfering with her possession in future.

3. The defendant-appellant Furkan denied the execution of the will Ex. P-1, and pleaded that he had been in possession of the land in question after the death of Mehrab Khan as the latter's heir, as being the son of Irfankhan, brother of Mehrab Khan. His case was that the property in question belonged not to Mehrabkhan alone but to Mehrabkhan and his brother Irfan Khan jointly and that Mehrabkhan was not competent to bequeath the land in question to the plaintiff.

4. After recording the evidence produced by the parties the sub-divisional Officer dismissed the plaintiffs suit. On appeal by the plaintiff the learned District Judge reversed the judgment and decree of the trial Court and passed a preliminary decree for partition of the suit land declaring that the plaintiff shall get 2/3rd share, and the respondent-defendant will get 1/3rd share on partition. He further directed that a Commissioner be appointed to carry out the partition. Aggrieved by the judgment and decree passed in the plantiffs favour by the learned District Judge, Partapgarh the defendant has come in second appeal to this Court.

5. The respondent has not put in appearance in spite of service of notice of appeal, and, therefore, this appeal has been heard ex parte.

6. The learned District Judge has found that the land in question belonged exclusively to Mehrab Khan. He has also held that the execution of the will Ex. P-1 has been fully established. However; the learned District Judge has upheld the bequest in favour of the plaintiff to the extent of 1/3rd only as according to Mahomedan Law by which the parties are governed. Mehrab Khan could not have bequeathed more than 1/3rd of his property to his heir. In this view of the matter he upheld the bequest to the extent of 1/3rd only. Out of the rest of 2/3rd he was of the opinion that the plaintiff being the daughter of Mehrab Khan and Furkan being the brother's son of Mehrab Khan were entitled to get 1/3rd each. Consequently he came to the conclusion that the plaintiff Mst. Mumtaz Begam was entitled to get 1/3rd by will, and 1/3rd by inheritance, that is, 2/3rd in all and Furkan was entitled to get 1/3rd as heir. Having come to this conclusion in exercise of discretion under Sec. 209 of the Rajasthan Tenancy Act, 1955, he directed that a decree for partition may be granted even though not prayed for.

7. The first contention of the learned counsel for the appellant is that the bequest in favour of the plaintiff cannot be upheld even to the extent of 1/3rd inasmuch as according to Mahomedan Law disposition by a Mahomedan in favour of any of his heirs not consented to by all other heirs after the death of the testator is void. This submission seems to be correct. In the Chapter pertaining to wills in Mulla's Principles cf Mahomedan Law 16th Edition it is mentioned in Para. 117 that a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. The policy of this