C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit for possession and perpetual injunction pertaining to agricultural land situated in village Uncha, Tehsil Nimbahera.
2. The plaintiff-respondent Mst. Mumtaz Begam filed a suit out of which this appeal arises on 30-6-1969 alleging that the land in question belonged exclusively to her father Mehrab Khan, who died on 21-3-1957. It is alleged that Mehrab Khan had executed a will date 17-6-1943 with respect to the property in question as also the other property in her favour. A copy of the will has been produced, and marked Ex. P-1. The plaintiff's case is that after Mehrab Khan's death she took possession of the land in question but on 20-6-1957 the defendant-appellant Furkan took forcible possession of the same. Consequently she instituted the present suit in the Court of Sub-Divisional Officer, Nimbahera, for possession of the land and also for perpetual injunction restraining the defendant from interfering with her possession in future.
3. The defendant-appellant Furkan denied the execution of the will Ex. P-1, and pleaded that he had been in possession of the land in question after the death of Mehrab Khan as the latter's heir, as being the son of Irfankhan, brother of Mehrab Khan. His case was that the property in question belonged not to Mehrabkhan alone but to Mehrabkhan and his brother Irfan Khan jointly and that Mehrabkhan was not competent to bequeath the land in question to the plaintiff.
4. After recording the evidence produced by the parties the sub-divisional Officer dismissed the plaintiff's suit. On appeal by the plaintiff the learned District Judge reversed the judgment and decree of the trial Court and passed a preliminary decree for partition of the suit land declaring that the plaintiff snail get 2/3rd share, and the respondent-defendant will get 1/3rd share on partition. He further directed that a Commissioner be appointed to carry out the partition. Aggrieved by the judgment and decree passed in the plaintiff's favour by the learned District Judge, Partapgarh the defendant has come in second appeal to this Court.
5. The respondent has not put in appearance in spite of service of notice of appeal, and, therefore, this appeal has been heard ex parte.
6. The learned District Judge has found that the land in question belonged exclusively to Mehrab Khan. He has also held that the execution of the will Ex. P-l has been fully established. How ever; the learned District Judge has upheld the bequest in favour of the plaintiff to the extent of 1/3rd only as according to Mahomedan Law by which the parties are governed. Mehrab Khan could not have bequeathed more than 1/3rd of his property to his heir. In this view of the matter he upheld the bequest to the extent of 1/3rd only. Out of the rest of 2/3rd he was of the opinion that the plaintiff being the daughter of Mehrab Khan and Furkan being the brother's son of Mehrab Khan were entitled to get 1/3rd each. Consequently he came to the conclusion that the plaintiff Mst. Mumtaz Begam was entitled to get 1/3rd by will and 1/3rd by inheritance, that is, 2/3rd in all and Furkan was entitled to get 1/3rd as heir. Having come to this conclusion in exercise of discretion under Section 209 of the Rajasthan Tenancy Act, 1955, he directed that a decree for partition may be granted even though not prayed for.
7. The first contention of the learned counsel for the appellant is that the bequest in favour of the plaintiff cannot be upheld even to the extent of 1/3rd inasmuch as according to Mahomedan Law disposition by a Mahomedan in favour of any of his heirs not consented to by all other heirs after the death of the testator is void. This submission seems to be correct. In the Chapter pertaining to wills in Mulla's Principles of Mahomedan Law 16th Edition it is mentioned in Para. 117 that a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. The policy of this law is to prevent the testator from interfering fry will with the course of devolution of properly according to law among his heirs, although he may give a specified portion, as much as a third to a stranger. The reason is that a bequest in favour of an heir would be an injury to the other heirs, as it would reduce their share, and would consequently induce a breach of the ties of kindred. Tyabji on Muslim Law, 4th Edition has observed at p. 759, para. 670, that the bequests in excess of the bequeathable third and/or in favour of any heir, are validated and will be given effect to, if, after the testator's death the heirs whose rights are affected by such dispositions consent thereto, expressly or impliedly.
8. In Salayjee v. Fatima Bibi, AIR 1922 PC 391, it was observed by their Lordships that the Mahomedan Law, does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree. It was further held that the burden of proving the consent was on the party claiming under the will. Thus there is no doubt that a bequest under Mahomedan Law to an heir even to the extent of 1/3rd cannot be upheld unless the other heirs consent to the bequest after the death of the testator. In the present case as has been held by the lower appellate court the other heir of Mehrab Khan is defendant Furkan. Mehrab Khan died on 23-1-1957 and within three months of his death Furkan asserted his right to the property of Mehrab Khan by taking possession over it. The plaintiff has nowhere alleged that Furkan had consented to the bequest made in her favour by Mehrab Khan after the death of the testator. It is true that the consent of the heirs need not be express and may be signified by conduct, but in the present case soon after the death of Mehrab Khan in derogation of the bequest Furkan asserted his own right to the land and took forcible possession of the same.
In these circumstances there is no escape from the conclusion that the only heir of Mehrab Khan, Furkan did not give consent to the bequest after the death of the testator Mehrab Khan. Consequently the bequest in favour of the plaintiff cannot be validated and the plaintiff is not entitled to get any share under the bequest. The learned District Judge completely ignored this aspect of the case, and therefore, his finding that the bequest to the extent of 1/3 share is valid in favour of the plaintiff is vitiated and must be set aside.
9. The position thus boils down to this that the plaintiff Mumtaz Begam as well as the defendant Furkan both are entitled to half share each in the disputed land. The learned District Judge has granted a decree for partition. The plaintiff had prayed for possession of the whole of the land as well as for perpetual injunction. She has nowhere claimed the division of the holding by partition and for possession of her share. The only proper relief which should have been granted in her favour was to grant a decree for joint possession over the land in question with Furkan after declaring that both the plaintiff as well as the defendant are entitled to half share in the property of deceased Mehrab Khan.
Learned counsel for the appellant has invited my attention to Section 53 of the Rajasthan Tenancy Act under which it is provided in Sub-section (4) that to every suit for the division of one or more than one holding, all the co-tenants and the land-holder shall be made parties. It is further provided in Sub-section (5) that a suit for division of more than one holding may be instituted, provided that the parties are the same. Thus it appears that the land-holder has also a say in the matter of division of holding. In my opinion, in the facts and circumstances of the present case it was not proper to have granted a decree for partition of the land when the plaintiff had not claimed partition, and the suit had not been fought on the basis of claim for partition. In this view of the matter the decree for partition granted by the learned District Judge also cannot be sustained.
10. As a result of the foregoing discussion, I allow the appeal in part and modify the judgment and decree by the learned District Judge, Partapgarh, dated 28-8-1962 in the following terms:--
'It is hereby declared that the plaintiff respondent is entitled to half share in the suit land and a decree for joint possession along with the defendant Furkan over the land in question be further granted in her favour.'
11. In view of the fact that the respondent has not appeared to contest the appeal there will be no order as to costs.