1. This Second Appeal was admitted on following substantial questions oflaw:1. Whether no consent of other co-sharers was required in law when the Will was only for 1/3rd share of the property?

2. Whether on the facts proved in the case, the plaintiffs are entitled to 1/5th share in the suit property?

2. Learned counsel for the appellant did not press the second question of law and confined his arguments to the first question only by giving up second question.

3. This is the plaintiff's appeal. Appellants are the daughters of Munawar and respondents No.1 to 3 are his sons and LRs No.1 to 4 are sons of deceased defendant Chitarkhan. The appellants had filed a civil suit raising the plea that Munawar khan had 1/2 share in the land admeasuring 7.05 hectares described in para-1 of the plaint. Munawar out of his share had bequeathed the land of survey No.2658 and 2660 admeasuring 0.99 hectares to the appellants by a registered Will dated 2.5.1987, therefore, they claimed to be owners of the said land by virtue of Will and in respect of remaining land of Munawar, they claimed 1/5th share each. Therefore, the suit was filed for declaration of title to the extent of the land covered by the Will and declaration and partition for the remaining land.

4. Respondent/defendants has opposed the suit and questioned the Will.

5. The trail Court by the judgment dated 11.3.1991, held that the alleged Will was proved, but, on the basis of such a Will, the appellants had no rights, since the Will was ineffective for want of consent of the respondent who are the other heirs of Munawar. The Trial Court held that the appellants had no right on the basis of the alleged Will, but, they were held entitled for 1/6th share from the property of Munawar.

6. In appeal, the Lower Appellate Court affirmed that on the basis of Will in question, the appellants did not receive any right. The Lower Appellate Court held that under the Mahomedan Law, son gets double share in comparison to the daughter. Accordingly, the Lower Appellate Court partly modified the decree of the Trial Court holding the appellants entitled 1/8th share each.

7. Learned Counsel appearing for appellants submitted that since the property to the extent of 1/3rd share was bequeathed by Munawar, therefore, consent of other heirs was not necessary. He further submitted that S 117 of Mull's Principles of Mahomedan Law should be read together with S.118 and in such a case the consent was not necessary and the appellants have lawfully received the land of Survey No.2658 and 2660 under the registered Will executed by Munawar.

8. As against this, learned counsel for respondents submitted that since the Will was in favour of some of the heirs of Munawar, therefore, the consent of other heirs was necessary and such a Will has no effect in terms of S. 117 of Mull's Principles of Mahomedan Law.

9. Learned counsel for appellants in support of his submissions has placed reliance upon the judgment reported in the matter of E.C. Jeewa vs. H.H. Yacoob Ally and another [AIR 1928 Rangoon 307]; Yasin Imambhai Shaikh vs. Hajarabi and others [AIR 1986 Bombay 357; Abdul Manan Khan ys. Mirtuza Khan and others [AIR 1991 Patna 154]; whereas, learned counsel for respondents has placed reliance upon the judgment reported in the matter of Narunnisa vs. Sheik Abdul Hamid [AIR 1987 Karnataka 222].

10. Section 117 of Mulla's Principles of Mahomedan Law deals with bequest to an heir

and provides as under:

117. Bequests of heirs -A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share'.

Explanation - In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death.

11. Section 118 deals with limit of testamentary power, which reads as under.

118 Limit of testamentary power: - A Mahomedan cannot