K. C. Agrawal, A.C.J. - (1.) THIS is a plaintiff's second appeal arising out of a suit for partition.
(2.) ABDUL Kareem, ABDUL Wahid, ABDUL Majeed and ABDUL Aziz were four brothers. ABDUL Wahid died on 29th March, 1969. It was thereafter that ABDUL Kareem filed the aforesaid suit for partition of his l/3rd share in the properties left by the deceased. The suit was contested by defendants Nos. 1, 2, 4, 5 and 6. Defendants Nos. 1 and 2 were brothers of Abdul Wahid whereas defendants Nos. 4 to 6 were the nephews of the deceased. Under the Mahomedan Law, the properties belonging to Abdul Wahid could be inherited by all of his three brothers, the plaintiff and defendants nos. 1 and 2.
(3.) DEFENDANTS Nos. 1 and 2 set up a will alleged to have been executed by Abdul Wahid in respect of his properties. They asserted that as the plaintiff Abdul Kareem gave his consent to the will, as was required by the Mahomedan Law, he was not entitled to get 1/3rd share. Under the will, the plaintiff had been given a Khaprail which was in his occupation and he had agreed to the same. On the pleadings of the parties, one of the issues, which arose for decision, was issue No. 7, which runs as follows :- "Did the plaintiff agree to the alleged will ? If so, its effect ?" Paragraph 117 of Mulla's Mahomedan Law runs as under :- "Bequest to 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." Thus, under the Mahomedan Law, a will would not be valid unless the heirs gave their consent to it after the death of the testator.;