JUDGMENT :- Sajathi Bi, wife of Anwar Basha, the appellant herein is the 5th defendant in the suit filed by the 2nd respondent A. S. Noordeen.

2. The plaintiff/2nd respondent filed a suit in O.S. No. 16 of 1986 for declaration that he was entitled to 10/48 shares in the amounts deposited by Khader Mohideen, the brother of the plaintiff, after his death and for other reliefs contending that the Will executed by the deceased Khader Mohideen in favour of Fathima Bi, another sister, was not true and valid.

3. Though there are five defendants including the 1st respondent Fathima Bi, by the propounder of the Will, 1st defendant-mother, defendants 2 and 3 brothers and 5th defendant-sister, the appellant herein remained ex parte.

4. The suit was contested by Fathima Bi, the 4th defendant alone contending that she had become entitled to the entire amount deposited by the deceased Khader Mohideen in the Bank under the said Will, as the same was true, valid and effective. Ultimately, the suit was dismissed holding that the Will is not valid, though the Will has been properly proved and as such, the plaintiff Noordeen would be entitled to 10/48 shares.

5. Aggrieved by the said judgment and decree, Fathima Bi, the 4th defendant filed an appeal in A. S. No. 147 of 1989 before the lower appellate Court.

6. After hearing the counsel for the parties, the lower appellate Court partly allowed the appeal while confirming the judgment of the trial Court holding that the plaintiff would be entitled 10/48 shares in the deposits made by deceased Khader Mohideen and as the other defendants remained ex parte before the trial Court, having not chosen to contest the claim of the 4th defendant under the Will, the Will in favour of the 4th defendant is valid to the extent of their shares and therefore, it can be taken that there is implied consent for the grant of their shares to the 4th defendant as per the Will.

7. Though the lower appellate Court confirmed the decree in respect of the 10/48 share in favour of the plaintiff, the 4th defendant did not choose to file any appeal. However, the fifth defendant Sajathi Bi has filed this second appeal challenging the finding by the lower appellate Court that the consent of other defendants, namely mother, brothers and other sister can be inferred as they remained ex parte before the trial Court and as such, the 4th defendant would be entitled to the entire balance share, as the Will in favour of the 4th defendant is valid to the extent of their shares.

8. While the second appeal was admitted, the following substantial question of law has been framed :

"Whether the appellant (5th defendant) and the respondents 3 to 5 (defendants 1 to 3), other brothers and sister can be said to have impliedly consented to the bequest made by Khader Mohideen, under Ex. B-1 in favour of the first respondent (4th defendant), merely on the footing that they had remained ex parte in the suit?

9. In elaboration of this substantial question of law, the learned counsel for the appellant/5th defendant would submit that the lower appellate Court ought not to have decreed the suit in respect of the shares which the appellant and other defendants are entitled on the ground that there was a consent on their part even without any evidence. According to him, remaining ex parte before the trial Court while decree is passed in the suit filed by the plaintiff would not mean consent and on other hand, the 5th defendant and other defendants were represented by the counsel before the lower appellate Court and on their behalf, the counsel argued in support of the plaintiff/2nd respondent and contended that the judgment of the trial Court is correct.

10. I have heard the counsel for the respondents and also gone through the judgments rendered by both the Courts below.

11. On perusal of the entire records and on consideration of the submissions made by the counsel for the parties, I am of the considered opinion that the finding in relation to the shares of the o

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