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Mohammedan Law - A will in favour of a legal heir is invalid in the absence of consent by the other legal heirs - Consent of other legal heirs is the exception to the rule.
Under the Mohammedan Law a bequest to a 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 either in whole or in part. The bequest is invalid unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. A will in favour of a legal heir is invalid in the absence of consent by the other legal heirs. Therefore consent of other legal heirs is the exception to the rule. (paras. 7 & 9)
AIR 1937 P.C. 174; AIR 1935 Rang. 318;
2004 (1) KLT 896 & 1988 (2) KLJ 477 Referred to
S. Venkatasubramonia Iyer (Sr. Advocate),
L. Mohanan & M. Balagovindan For Appellants
Siby Mathew, A.A. Mohammed Nazir, Philip J. Vettickattu,
V. Laxmi, N. Govindan Nair & P. Parameswaran Nair For Respondents
JUDGMENT
R. Bhaskaran, J.
This second appeal is filed by the second defendant in a suit for partition. The trial court granted a decree for partition subject to reservation of tenancy right claimed by the second defendant. The appellate court found that the reservation of tenancy right in favour of the second defendant is illegal and directed those items also to be partitioned.
2. The plaint schedule properties belonged to Asanaru Pillai. The plaintiff and defendants 1 to 6 are the heirs of Asanaru Pillai. Asanaru Pillai died on 31.7.1976. The 6th defendant is his widow and plaintiff and defendants 1 to 5 are their children. After the death of Asanaru Pillai the legal heirs except the second defendant had executed a partition deed dividing the properties between them. The second defendant refused to be a party and contended that Asanaru Pillai has executed a will in his favour giving the properties exclusively to him. Since the second defendant has taken
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up a stand that all the properties belonged to him, the plaintiff was compelled to file the present suit. 3. The defendants 1, 3, 4 and 6 filed written statement supporting the plaintiff and prayed for allotment of 7/40 share to the first defendant and 3rd defendant respectively, 7/80 share to the 4th defendant and 1/8 share to the 6th defendant. The 7th defendant is the wife of second defendant. They filed joint written statement contending that Asanaru Pillai executed a will in favour of the second defendant bequeathing the entire properties in his favour. The plaintiff or other defendants have no right to claim partition. The 5th defendant also supported the contention of the second defendant, but prayed for allotment of her share in the event the will is set aside. The 8th defendant is an assignee from defendants 2 and 7 in respect of 20 cents. He claimed that he has effected valuable improvements and also prayed that in equity the property may be allotted to the share of the second defendant. After the death of the first defendant, the defendants 9 to 13 were impleaded as his legal heirs and 6th defendant was recorded as one of the legal heirs. The 14th defendant contended that he is an assignee of 99 cents subsequently included as item No. 8 in plaint B-schedule and he denied that the plaintiff or defendants have any right in the property. The second defendant also had claimed tenancy right in respect of items 1 and 2 in plaint B-schedule. The trial court referred the question of tenancy to the Land Tribunal and the Land Tribunal found the second defendant to be a deemed tenant.
4. The trial court found the will set up by the second defendant to be unacceptable for various reasons. In appeal the appellate court found that the finding of the land Tribunal with regard to items 1 and 2 in plaint B-schedule is unsustainable and that the second defendant is not entitled for any reservation as deemed tenant. The appellate court also found that the will alleged to have been executed by Asanaru Pillai is unenforceable in law and therefore the plaintiff and other supporting defendants are entitled to a decree for partition.
5. When this second appeal came up for final hearing, learned senior counsel for the appellant did not seriously challenge the finding of the appellate court with regard to the claim of the second defendant as deemed tenant in respect of items 1 and 2 of plaint B-schedule. The second defendant claimed to be deemed tenant under S.4A(1)(b) of Act 1 of 1964. The appellate court has rightly found that even on the pleadings of the second defendant he is not entitled to the benefit of S.4A(1)(b) as the building was put up after Ext.B4 assignment in 1952 and the building could not be of 20 years old as on 1.1.1970. Moreover the mortgage deed also showed that there was a building already in existence. Therefore, it is unnecessary to consider about the tenancy right claimed by the appellant/second defendant in respect of items 1 and 2 of plaint B-schedule.
6. Learned senior counsel appearing for the appellant contended that thoughas per the Mohammedan Law a testator is not entitled to bequeath his properties to his
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heirs without the consent of the other heirs after his death; in this case the 5th defendant has filed a written statement supporting the contentions of the second defendant. Therefore the will can be enforced atleast with respect to the share which can be allotted to the 5th defendant. Learned counsel appearing for the respondents on the other hand contended that though the 5th defendant has filed a written statement supporting the 2nd defendant, he was a party to the partition deed and if consent was not given once the same cannot be given subsequently and therefore the support by the 5th defendant in the present suit will not enable the 2nd defendant to claim the share of the 5th defendant. In support of that contention he relied on the decision of the Privy Council reported in Mahabir Prasad v. Mustafa Husain (AIR 1937 PC 174). The Privy Council has stated as follows:
"The Chief Court on the footing that Mir Fida Husain had made a testament for a wakf (wasiyat-bil-wakf), were of opinion that two minor sons, who on coming of age had refused assent as heirs to this bequest, could change their minds and by assenting make valid what had been void and even sweep away securities granted by themselves. Their Lordships must not be taken to accept this opinion".
7. There is no controversy with regard to the principle that under the Mohammedan Law a bequest to a heir
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I am therefore in agreement with the court below that lack of registration cannot be set up as a defence so as to non suit the plaintiffs. The revision petition is accordingly dismissed.
avour of the second defendant is illegal and directed those items also to be partitioned.
2. The plaint schedule properties belonged to Asanaru Pillai. The plaintiff and defendants 1 to 6 are the heirs of Asanaru Pillai. Asanaru Pillai died on 31.7.1976. The 6th defendant is his widow and plaintiff and defendants 1 to 5 are their children. After the death of Asanaru Pillai the legal heirs except the second defendant had executed a partition deed dividing the properties between them. The second defendant refused to be a party and contended that Asanaru Pillai has executed a will in his favour giving the properties exclusively to him. Since the second defendant has taken
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up a stand that all the properties belonged to him, the plaintiff was compelled to file the present suit.
3. The defendants 1, 3, 4 and 6 filed written statement supporting the plaintiff and prayed for allotment of 7/40 share to the first defendant and 3rd defendant respectively, 7/80 share to the 4th defendant and 1/8 share to the 6th defendant. The 7th defendant is the wife of second defendant. They filed joint written statement contending that Asanaru Pillai executed a will in favour of the second defendant bequeathing the entire properties in his favour. The plaintiff or other defendants have no right to claim partition. The 5th defendant also supported the contention of the second defendant, but prayed for allotment of her share in the event the will is set aside. The 8th defendant is an assignee from defendants 2 and 7 in respect of 20 cents. He claimed that he has effected valuable improvements and also prayed that in equity the property may be allotted to the share of the second defendant. After the death of the first defendant, the defendants 9 to 13 were impleaded as his legal heirs and 6th defendant was recorded as one of the legal heirs. The 14th defendant contended that he is an assignee of 99 cents subsequently included as item No. 8 in plaint B-schedule and he denied that the plaintiff or defendants have any right in the property. The second defendant also had claimed tenancy right in respect of items 1 and 2 in plaint B-schedule. The trial court referred the question of tenancy to the Land Tribunal and the Land Tribunal found the second defendant to be a deemed tenant.
4. The trial court found the will set up by the second defendant to be unacceptable for various reasons. In appeal the appellate court found that the finding of the land Tribunal with regard to items 1 and 2 in plaint B-schedule is unsustainable and that the second defendant is not entitled for any reservation as deemed tenant. The appellate court also found that the will alleged to have been executed by Asanaru Pillai is unenforceable in law and therefore the plaintiff and other supporting defendants are entitled to a decree for partition.
5. When this second appeal came up for final hearing, learned senior counsel for the appellant did not seriously challenge the finding of the appellate court with regard to the claim of the second defendant as deemed tenant in respect of items 1 and 2 of plaint B-schedule. The second defendant claimed to be deemed tenant under S.4A(1)(b) of Act 1 of 1964. The appellate court has rightly found that even on the pleadings of the second defendant he is not entitled to the benefit of S.4A(1)(b) as the building was put up after Ext.B4 assignment in 1952 and the building could not be of 20 years old as on 1.1.1970. Moreover the mortgage deed also showed that there was a building already in existence. Therefore, it is unnecessary to consider about the tenancy right claimed by the appellant/second defendant in respect of items 1 and 2 of plaint B-schedule.
6. Learned senior counsel appearing for the appellant contended that though as per the Mohammedan Law a testator is not entitled to bequeath his properties to his
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heirs without the consent of the other heirs after his death; in this case the 5th defendant has filed a written statement supporting the contentions of the second defendant. Therefore the will can be enforced atleast with respect to the share which can be allotted to the 5th defendant. Learned counsel appearing for the respondents on the other hand contended that though the 5th defendant has filed a written statement supporting the 2nd defendant, he was a party to the partition deed and if consent was not given once the same cannot be given subsequently and therefore the support by the 5th defendant in the present suit will not enable the 2nd defendant to claim the share of the 5th defendant. In support of that contention he relied on the decision of the Privy Council reported in Mahabir Prasad v. Mustafa Husain (AIR 1937 PC 174). The Privy Council has stated as follows:
"The Chief Court on the footing that Mir Fida Husain had made a testament for a wakf (wasiyat-bil-wakf), were of opinion that two minor sons, who on coming of age had refused assent as heirs to this bequest, could change their minds and by assenting make valid what had been void and even sweep away securities granted by themselves. Their Lordships must not be taken to accept this opinion".
7. There is no controversy with regard to the principle that under the Mohammedan Law a bequest to a 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 either in whole or in part. The bequest is invalid unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. A Division Bench of this Court in the decision reported in Naziruddin v. Hajirambee (2004 (1) KLT 896) has noted with approval the above law. Learned senior counsel relied on the decision of this court reported in Abdul Kadir Rawther v. Hameedamma (1988 (2) KLJ 477) contending that consent need not be express. It can be inferred from circumstances andconduct also. Passive acquiescence with knowledge of the disposition also can give rise to a presumption of consent. A Division Bench decision of Rangoon High Court reported in Ma Hmyin v. P.L.S.A.R.S. Chettyar Firm (AIR 1935 Rangoon 318) has held that where a bequest is made, of an absolute estate to one of the heirs and the others have consented to it under a mistake of law, their consent is not vitiated by reason that it was caused by a mistake of law and the bequest takes effect. Except the decision of the Privy Council the other decisions cited by the learned counsel on both sides do not discuss the question as to whether a person who after coming to know about the will subscribes to a partition deed against the provisions contained in the will can subsequently give consent in the will. Before the Privy Council also this question was not considered as the main question. The 5th defendant has stated in the written statement that the existence of the will was known to all the sharers at the time of execution of the partition deed and she signed in the partition deed as persuaded by the plaintiff. If in any case the will is found to be not valid she may be allotted the property set apart under the partition deed.
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8. The trial court has noted the fact that Ext.B1 will is in favour of Sainulabdeen, aged 35 years residing at Kattuvila veedu. The name of the second defendant is Muhammad Ismail and at the time of execution of the will he was 43 years old. While examined as Dw1 he also admitted that he was not residing at Kuttuvila house at the time of execution of the will. Ext.A8 is the gift deed executed by Asanaru Pillai in favour of the second defendant on 3.12.1971 less than one year prior to the execution of the will. In Ext.A8 the second defendant's name is shown as Muhammad Ismail, aged 42 years, residing at Kattuvila veedu. The difference in the name and age of the second defendant is also a suspicious circumstance with regard to the genuineness of the will.
9. The general rule is that a will in favour of a legal heir is invalid in the absence of consent by the other legal heirs. Therefore consent of other legal heirs is the exception to the rule. In the written statement filed by the second defendant the only contention is that all the heirs have consented to the will. There was no contention that at any rate the 5th defendant had consented to the will and therefore as against him it has to be enforced. No such issue was framed or debated in the courts below. In the memorandum of second appeal also there is no ground raised. The 5th defendant is not represented by counsel in this court. Therefore without any ground taken in the memorandum of second appeal it may not be proper to decide the question as against the 5th defendant only. The substantial questions of law formulated do not contain such question of law.
The questions of law formulated in the memorandum of second appeal read as follows:
i) Is not the findings of the court below wrong and illegal when it found that Ext.Bl will is inoperative even to the extent of 1/3 share of the assets of the deceased, when the plaintiff himself admits the same?
ii) Is not the procedure adopted by the courts below correct in not giving opportunity to the appellant to prove the will and consent of legal heirs?
iii) Is not the finding of the court below that appellant is not entitled to fixity of tenure in respect of 'B' schedule items 1 and 2 wrong and liable to be set aside?
10. Therefore the argument of the learned senior counsel is without sufficient pleadings or issues or arguments before the courts below or taken as a ground in the memorandum of second appeal. In such circumstances it cannot be said that the point now argued by the learned counsel is a substantial question of law. As regards the question of law formulated it cannot be said that there is any admission of execution of will in the plaint or that the parties are Shias. The question of proof of will arises only if the consent by other legal heirs is established. The question of fixity of tenure is already discussed and found against.
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Assuming that this can be considered as a pure question of law on the basis of the written statement of the 5th defendant, the Privy Council decision states that consent once denied cannot be given subsequently. If consent can be granted impliedly it can be denied also impliedly and the execution of the partition deed by the 5th defendant is denial of consent by implication. In that view also it cannot be said that there is any substantial question of law involved in the second appeal. It is therefore dismissed without any order as to costs. |
