Under Mohammedan Law, a Will can only bind 1/3 of the property bequeathed, after deducting debts, if there is no consent from the other legal heirs after the death of the testator.

Both the appeals are arising out of the same Judgment and Decree, dated 11.08.1995 made in O.S.No.73 of 1989 on the file of the Sub-Court, Nagapattinam.

2. A.S.No.247 of 1996 is filed by the plaintiffs in the suit and A.S.No.371 of 1996 has been filed by the second defendant of the said suit. In these appeals, for the purpose of convenience, the parties to the appeals are referred to as plaintiffs and defendants as stated in the suit.

3. The plaintiffs 1 and 2 are the daughters of one A.N.Mohammed Ismail, born through his first wife, Hawwa Ammal. Mohammed Ismail had three wives. The defendants 1 and 2 are his sons, born through his second wife Jameela Beevi. The third defendant Mehabooba Beevi is his third wife and the fourth defendant Rahamathunissa Beevi was born through his third wife. Mohammed Ismail died on 08.08.1981, leaving the plaintiffs and defendants 1 to 4 as his Legal Heirs. The aforesaid relationship is not in dispute in these appeals.

4. According to the appellants / plaintiffs, Mohammed Ismail got a residential house and wet and dry lands as shown in the schedule of the plaint, by way of partition that had taken place on 09.07.1941. He was in possession and enjoyment of the schedule mentioned properties till the date of his death. As per Mohammedan Law, each of the plaintiffs are entitled to 7/56 share in the property, defendants 1 and 2 each are entitled to 14/56 share and the third and fourth defendants each are entitled to 7/56 share.

5. The A and B schedule of properties are situated at Vijayapuram, Tiruvarur Taluk, within the jurisdiction of the Court below. In a portion of A schedule property, shops were constructed and let out to the defendants 5 to 9 and they were paying rent originally to Mohammed Ismail, while he was alive and after his death, the second defendant is collecting the rent from them. Agricultural lands described as B schedule of properties are cultivated directly by the second defendant. With the above pleadings, the appellants / plaintiffs have sought for a preliminary decree for partition, dividing A and B schedule of properties and allot 14/56 share to them and also for rendition of accounts and mesne profits.

6. The first defendant has admitted the relationship of the plaintiffs and the defendants 1 to 4 in the written statement. According to him, he is a permanent resident of Burunai and the suit properties are in the possession and enjoyment of the second defendant, who is liable to render the accounts. He has further averred that Mohammed Ismail had executed a Will and the debts payable by him to third parties were also detailed in the B schedule of the Will. Mohammed Ismail was considerably old and sick, prior to his death. The income from the properties that was realised by the second defendant would have been more than enough to discharge the debts detailed in the B schedule of property of the Will.

7. According to the first defendant, he returned to India in 1985 and he did not know whether the plaintiffs consented to the bequeath, after the demise of the testator, Mohammed Ismail or not. If the consent of the plaintiffs were not obtained by the second defendant for the bequeath, he will be entitled to 14/56 share in the property. In case, the consent of the plaintiffs for the Will, after the death of Mohammed Ismail is proved, according to the first defendant, he will be entitled to half share in the property and the second defendant shall be directed to pay the plaintiffs and defendants 3 and 4, each a sum of Rs.5,000/- each from and out of the income of the suit properties. According to him, alienation in favour of the defendants 8 and 10 are unauthorised and the said items may be set apart to the share of the second defendant and the compensation amount deposited in L.A.O.P.No.78/84 be sent for to the Court and dealt with, as part of the estate of the deceased. With the above pleadings, the first defendant has also sought for his share, by way of partition and a