Only 1/3rd of property can be bequeathed by a Mohammedan.

P. Thangavel, J.

The appeals in A.S.No.228 of 1990 and Cross-objection No.116 of 1995 in A.S.No.228 of 1990, A.S.No.619 of 1990 and A.S.No.759 of 1990 are filed against the judgment and decree dated 1.11.1989 and made in O.S.No.56 of 1986 on the file of the learned Subordinate Judge, Tindivanam, by plaintiff, third defendant, 6th defendant and 9th defendant respectively.

2. The facts that are necessary for disposal of these appeals and cross objection are as follows:

Mohammed Ali Maraicair has married the first defendant and has given birth to defendants 2 to 6, his sons and plaintiff and defendants 7 to 9 his daughters. Mohammed Ali Maraicair was carrying on business in steel under the name and style of “Pondy Steel Agencies” at Anna Salai, Pondicherry and in brass vessels under the name and style of “Moula Sahib Stores” in Big Market, Pondicherry by investing about Rs.2,00,000 in the abovesaid shops. The properties described in plaint ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ Schedules belonged to Mohammed Ali Maraicair. Mohammed Ali Maraicair died on 30.5.1984 leaving the abovesaid properties and the plaintiff and defendants as his heirs. The plaintiff and defendants are entitled to the abovesaid properties as heirs. The plaintiff and defendants are enjoying the ‘A’ Schedule properties inclusive of items 12 and 13 jointly after the death of Mohammed Ali Maraicair. The plaint ‘C’ Schedule properties are deposits in bank and also decrees obtained by Mohammed Ali Maraicair against the persons who borrowed money from him. The properties described in ‘D’ Schedule were purchased from the income derived from the other properties described in the plaint Schedules. The properties described in ‘E’ Schedule were purchased by Mohammed Ali Maraicair in favour of his wife, the first defendant, but enjoyed by him during his life time till his death. The first defendant is attempting to sell the property in Kottakuppam in favour of one Iluvutheen Sahib, son of Jain Ullutheen Sahib. The first defendant has no right to sell. The defendants are claiming that Mohammed Ali Maraicair had executed a Will with regard to some of the items of these properties. The said Will is not genuine and it should have been forged by the defendants only to defeat the right of the plaintiff in the suit properties. In any event, Mohammed Ali Maraicair has no right to execute a Will with regard to the portions of the suit properties in favour of some of his heirs and it is not valid in law. The defendants are attempting to remove the stock in trade from the premises wherein Mohammed Ali Maraicair was carrying on business, and also the properties described in ‘B’ Schedule with a view to prevent to plaintiff from getting her due share. An advocate-Commissioner has to be appointed to take inventory of the stock in trade in Pondy Steel Traders and Moulana Sahib Metal Stores in Pondicherry. The plaintiff has issued notices to the defendants on 1.4.1986 and 11.6.1986 to divide the properties left by Mohammed Ali Maraicair and allot her share. The defendants 1 and 3 to 7 had given a reply notice on 23.4.1986 containing untenable allegations. It is under the said circumstances, the plaintiff who is the appellant in A.S.No.228 of 1990 on the file of this Court has filed the suit for partition and separate possession of her 7/112 share, to decide the mesne profits underO.20 , Rule 12, C.P.C. for accounting of the income from items 12 and 13 in plaint ‘A’ Schedule properties and also for costs.

3. Fifth defendant, adopted by defendants 1, 3, 4, 6 and 7 filed a written statement and the 6th defendant filed additional written statement resisting the claim made by the plaintiff on the following grounds: The plaintiff and defendants are heirs of Mohammed Ali Maraicair who died on 30.5.1984. Mohammed Ali Maraicair and his wife, the first defendant executed a Will on 15.9.1980 to the knowledge of the plaintiff and her husband with regard to items 1 to 7, 10 and 11 in plaint ‘A’ Schedule pr