1. The unsuccessful defendants are the appellants. The Respondent, daughter of late Shaik Mahboob, laid the suit for partition of the plaint schedule properties on the ground that her father died intestate. In the suit the appellants propounded the will, Ex. B1 dt. June, 15. 1956, under which the testator had given 1/3rd share to the second appellant. The trial Court in the first instance accepted that the will is valid and passed a preliminary decree. On appeal, it was confirmed. In Second Appeal No. 570/77, this court by judgment dt. Feb. 6, 1979, allowed the appeal and set aside the decree, in so far as it purports to uphold the validity of Ex. B. 1 and the second defendants' claim of 1/3 rd share in item No. 1 of the plaint schedule properties and remanded for fresh disposal in accordance with law after giving opportunity to the parties.
2. After remand, the appellate court held that the will is not valid and binding. It also held that the will does not contain a provision for 1/3rd share in the house to the second defendant. Accordingly, in the first instance it granted a preliminary decree declaring that the plaintiff is entitled to 1/2 share, that the first defendant is entitled to 1/2 share, that the first defendant is entitled to 1/8th share and that the second defendant is entitled to 3/8th share. The second defendant is not a legal heir, as per law. Then I. A., 14/80 was filed for amendment of the decree and consequently it amended the decree declaring that the respondent is entitled to 7/8th share and the first appellant is entitled to 1/8th share and the second defendant/2nd appellant is not entitled to any share in the suit properties. Assailing the correctness of the appellate decree, the present second appeal has been filed.
3. In this appeal, Sri. Aziz Ahmed Khan, learned counsel for the appellants contended that the view of the lower appellate Court that the will, Ex. B1 is not legal as per 'Mohammedan Law'., is not correct. He contends that the will recites several persons to be the heirs. It also declares the assets and liabilities. It also provides the proportion in which the property is to be received by each party and finally it is stated that the heirs are entitled to the properties after the testator's lifetime. There is no express provision under the Mohammedan Law to recite in the will that right to revocation is reserved. The lower court proceeded on an erroneous assumption that the testator conferred rights in praesenti and the absence of right to revocation of the will constitutes invalidity. This view is against the provisions of Chap. IX of 'Principles of Mohammedan Law' by Mulla. He read out various provisions thereunder.
4. Sri Syed Shah Mohammad Quadri, learned counsel for the respondent, on the other hand, contends that the Document is primarily to be read whether it is a will or a conveyance. Once it is construed that it is a will, then the provisions contained in Mohammedan Law in Chap. IX would apply. The revocation is implicit under the Mohammedan Law also, since the testator has got a right till the date of his death to revoke the will and write another will or even orally declare his will declaring his intention to be a will. In this case the fact that he divided the properties during his lifetime and gave them by metes and bounds in species, it is only a conveyance and not a will. The fact that he did not preserve the right, though not expressly, but by conveying the property itself, indicates that he did not reserve his right to revoke. That is the emphasis laid by the lower court in the absence of the recital in the document. Therefore, the view of the lower court is perfectly legal in holding that the will is not valid and it does not warrant interference in this second appeal.
5. Upon the restrictive contentions, the question that arises for consideration is whether Ex. B.1 is a will and whether it is valid according to law. Though while remanding the matter to the lower court, this court set aside the legality of the execution of the will as such, the appellate court did not go into the execution of the will, but proceeded on the basis that it is a will and then considered whether it is valid. I am not for a moment doubting the correctness of the finding, but as a fact. I have mentioned. Both the counsel also did not argue that it is not a will. Therefore, I proceed on the premise that it is a will, and then to test whether it is valid. Chap. IX of the Principles of Mohammadan Law, by Mulla, 16th Edn., deals with wills and S. 115 says that subject to the limitation provided in this chapter, every Mohammadan of sound mind and not a minor may dispose of his property by will. S. 116 says that a will may be made either verbally or in writing. It is, thereby clear that no writing is required to make a valid will and no particular form is necessary. Even a verbal declaration is a will so long as the intention of the testator is sufficiently ascertained.
6. In Abdul Hameed v. Mohammad Yoonus AIR 1940 Mad 153, a Division Bench of the Madras High Court was considering whether a letter written by the testator would be a will. The Division Bench has held that under Mohammedan Law, no writing is required to make a will valid and no particular form of verbal declaration is necessary as long as the intention of the testator is sufficiently ascertained. Hence, where the testator having decided to make certain alterations in his will and after having received the draft codicil instructed by a letter and wire, his solicitors to amend it by inserting a provision cancelling the directions he had given in his will with regard to the school fees of his grand children, the letter of instructions and the wire form part of the will and can be admitted to probate.
7. Under S. 128, a bequest may be revoked either expressly or by implication . under S. 129 it is stated that a bequest may be revoked by an act which occasions an addition to the subject to the bequest, or an extinction of the proprietary right of the testator. Under S. 118, a Mohammedan is prohibited to dispose of by a will or not more that a third of the surplus of his estate after payment of funeral expenses and debts. For excess thereof, the consent of the heirs thereto after his demise is mandatory. Under S. 117 a bequest to an heir is not valid unless the other heirs consent to it after the demise of the testator. From the consideration of the above relevant sections, it is clear that the intention of the testator must be clear and explicit and form is immaterial and inconsequential. Revocation also in an inferential fact from proved facts and circumstances in a given case. No express mention of revocation of the will is mandatory. The bequest must be one third of his estate after meeting the specified expenses and a bequest to an heir is invalid.
8. In view of the above consideration, the necessary conclusion is that under Mohammedan Law, no form is required and a writing by way of a testamentary disposition by a Mohammedan is valid and binding of the persons claiming to his estate.
9. The next question is, whether the will is valid. Here comes the question of consideration of the recitals in the document. A reading of the document his daughter and his nephew to be his heirs and they are entitled to the property in the shares mentioned under the will. He also declared that certain encumbrances by way of loans he raised and made them to discharge the same. He divided the properties in species and has given them in present possession for enjoyment and it is admitted that they were in possession also. No doubt, he mentioned that it comes into effect after his lifetime. There is no mention that the bequest is of 1/3rd after deducting the funeral expenses and debts. On a consideration of these recitals, the lower Court has held that it was devised in praesenti conferring the title under the document and since the document was unregistered., they do not get any right to the property and therefore, the document is not valid. It also held that absence of right to revocation also constitutes invalidity.
10. I have given my anxious consideration to the respective contentions and the recitals in the document. After deep consideration, I am disposed to come to the conclusion that though a Mohammedan is not required to dispose of his properties by way of a will in writing but since he chose that for them the document has got to be considered whether it is a will and if so, whether it is valid. A fair reading of all the recitals and it cumulative effect gives me an unhesitating conclusion to hold that he devised the property by means of a conveyance and he expressed the same at one point thus 'by means of this bond'. There what was animated by him is not by way of a will, but by way of a conveyance and admittedly, it is not a registered document. Therefore though it is styled to be a will, it is invalid and it is not binding on the legal heirs of the deceased. Admittedly the daughter and the defendant-wife are the legal heirs. In the document, there is no recital regarding the conveyance of 1/3rd share of the house. It is already held that it is not a will and it is a conveyance and even if there is any such recital regarding 1/3rd of item I of plaint schedule, it also does not confer any title on the second appellant. Therefore, lower appellate court has rightly held that the second appellant is not entitled to any share and accordingly the amended preliminary decree is perfectly legal and it does not warrant interference.
11. Accordingly, the second appeal is dismissed, but in the circumstances, without costs.
12. Appeal dismissed.