R.P. Mookerjee, J.
1. The property in suit originally belonged to one Meher Ali Tarafdar. Before his death he bad executed a will on 15-10-1911. Although Meherali died in November following, probate was not obtained by his widow, Gour Bibi until 27-6-1935. By the will Meherali purported to create a life interest in favour of his widow Gour Bibi and after the determination of that life estate the property was to descend to all his legal heirs under the Mahomedan law. After having obtained probate Gour Bibi as executrix obtained permission from the Probate Court for sale of one of the properties which had been bequeathed by Meher Ali. After having obtained permission, Gour Bibi sold this particular plot to Wahed Hossain. The interest of Wahed Hossain was sold on 15-5-1940 in execution of a money decree obtained against him. The plaintiff Omar Ali was the purchaser and it is stated that he had obtained possession on 25-6-1941, through Court but as he could not get actual possession the present suit was start-ed in March 1944, for declaration of title and for delivery of possession.
2. Meher Ali had three sons and one daughter. Defendants 1 to 6 are the heirs of Belat Ali, one of the sons of Meher Ali Defendant 6 is the widow of another son Asmat Ali. Another son, Entaz is dead as also his son Usuf. It is not possible to ascertain from the present record as to who the heirs of Usuf were but it appears that the parties had proceeded on the basis that Usuf's interest had vested in some or other of the defendants. Arifannessa, the only daughter of Meher Ali, had not been made a party.
3. The defence in the main was that the will being of the entire property left by Meher Ali and the disposition being in favour of one or more of the heirs of the testator the will did not convey any title and the executrix had no right to deal with the property. There were other allegations that the kobala executed by Gour Bibi in favour of Wahed Hossain had not been acted upon and that the latter had never possessed the suit land. Both the Courts below have decreed the plaintiff's suit. The present appeal is on behalf of defendant 2 alone, one of the sons of Belat Ali.
4. Under the Mahomedan law, a Mahomedan cannot by will dispose of more than one-third of his estate unless such bequest in excess of the legal third is consented to by the heirs after the death of the testator.
5. On behalf of the plaintiff, it is alleged in the first place that this provision in the Mahomedan law is not attracted on the facts of the present case as only a life estate was created in favour of the widow and after such life estate the property was to descend according to the Mahomedan law. No doubt, creation of a life estate is not repugnant to Mahomedan law. Achiraddin Ahmed v. Sakina Bewa 50 C. W.N. 59 : (A. I. R (33) 1946 Cal. 288). But the inter, position of a life estate of a certain estate under a testamentary bequest must be deemed to be a testamentary disposition of the entire property to the exclusion of the legal heirs. Mt. Amrit Bibi v. Mustafa Hussain, 46 ALL. 28 : A.I.R. (11) 1924 ALL. 20). It is. therefore, to be proved that the heirs had consented to such a bequest.
6. On behalf of the plaintiff, it is contended that the sale in favour of Wahed Hussain was by Gour Bibi after having obtained permission from the Probate Court in her capacity as executrix to the estate of Meher Ali. Under Section 211, Succession Act, 1925, the executor to the estate of a deceased Mahomedan is his legal representative for all purposes and all the property of the deceased vests in him as such. This provision must be read along with the limitations which are imposed under the Mahomedan law on the rights of a testator to dispose of his properties. Reference may in this connection be made to the following passage in Mulla's Mahomedan law, Edn. 13, p 31:
'But since a Mahomedan cannot dispose of by Will of more than one-third of what remains of his property after payment of his funeral expenses and debts and since the remaining two third must go to his heirs as on intestacy unless the heirs consent to the legacy exceeding the bequeathable third, the executor when he has realised the estate is a bare trustee for the heirs as to two-thirds and an active trustee as to one-third for the purpose of the Will, and of these trusts one is created by the Act and the probate irrespective of the Will, the other by the Will established by the probate.'
7. For this proposition the authority relied upon is Kurratulain Bahadur v. Nawab Nuzhat-Ud-Dowla, 32 I. A. 244 at p. 257 : (33 Cal. 116 P. c.). The Judicial Committee further observed :
'There are thus two trusts for different sets of persons of different properties and based upon different titles. And this state of things does not arise from any accidental conflict of laws such as gave rise to a somewhat similar complication in the case of Concha v. Concha, (1886) 11 A. C. 541 : (56 L. J. Ch. 257) but by the deliberate action of tile Legislature. In giving effect to a system of so peculiar a nature as that described, their Lordships think it necessary to proceed with the great caution.'
The actual decision in the case was that the provisions of the Probate and Administration Act (v  of 1881) did not create an estoppel. In the ease of a Mahomedan. whose testamentary power was limited only to one third of the estate, the two-thirds claimed adversely to the will by the heirs could not be affected by the terms of the will or by the effect of the probate.
8. Bearing in mind these observations of the Judicial Committee we Have next to consider the effect of the provisions now contained in Section 307, Succession Act. It is unquestionable that the estate of a Mahomedan testator vests in the executor from the date of the testator's death and the former has the power to alienate the estate for the purposes of administering it and he has all the powers of an executor under the provisions contained in that section.
9. This, however, is to be read subject to the provisions contained in the Mahomedan Law limiting the powers of disposition of the Mahomedan testator. If the testator himself was incapable of bequeathing any share in the property in excess of one-third of the entire estate, the executor to the estate so left by the testator would not have rights larger than what the testator himself had at the time of his death. The powers of the executor cannot, in my view, be extended over the entire estate without being limited by the provisions contained in the Mahomedan Law which restrict the power of testamentary disposition by a Mahomedan. The sale by the executrix after having obtained permission of the District Judge would not therefore in any way clothe the purchaser with rights which the executrix herself had not.
10. Reference may also at this stage be made to another set of circumstances. Even if under the will the entire property had vested in the wife as the holder of a life estate the wife in this case was dealing with the property to meet a portion of her own debts. She cannot in any 'view be regarded as having rights in excess of what could have been riven to her under the testamentary disposition. The acts by the executor or the beneficiaries, the holder of the life estate, cannot therefore be supported even with reference to the provisions of Section 307, Succession Act.
11. The only way therefore that the transfer by Gour Bibi in favour of Wahed may be supported is on proof that heirs of Meher Ali had consented to the testamentary disposition of a life estate in favour of Gour Bibi.
12. As indicated already bequests in excess of the legal third can be effectual only if the heirs consent thereto. Such consent is to be by the heirs as at the time of the testator's death and not at the time of the execution of the Will (Baille 625). The consent to be effective is to be given after the death of the testator (Khajurinnissa v. Raoson, 3 I. A. 291: (2 Cal. 184 P. C.).
13. While discussing as to how the consent by the heirs as at the time of the death of the testator may be proved reference may be made to the observations in Sharifa Bibi v. Ghulam Mahomed 16 Mad. 43 at p. 47 : (3 M. L. J. 14). Consent having been given before the death of the testator and the same not having been revoked it holds good even after his death. Whether the heirs have consented to bequests in excess of the legal third may be signified by the conduct of the parties. Daulatram Khushalchand v. Abdul Kayum, 26 Bom. 497 : (4 Bom. L. R. 132), Mahomed Hussain v. Aishabai, 36 Bom. L. R. 1155 : (A. I. R. (22) 1936 Bom. 84). Consent is also presumed from passive acquiescence by the heirs. Satyendra Nath v. Narendra Nath : AIR1924Cal806 . Where the testator left a registered will long silence by the heirs was held to raise a presumption of consent by the heirs Faquir Mohammad v. Hasan Khan, 16 Luck. 98 at p. 99 : (A. I. R. (28) 1941 Oudh 25).
14. It has further been held that if proof be available of consent having been given by some of the heirs the share of such, consenting heirs would be bound by such consent. A. E. Salayjee v. Fatima Bibi, 1 Rang. 60 : (A. I. R. (9) 1922 P. C. 391).
15. The learned Subordinate Judge has not approached the case from the proper standpoint. At one place he states that:
'It was not suggested by the defendants that Meher Ali executed the will without the consent of his heirs. In fact there is no evidence beating on the question.'
The point of time when consent must be shown to have been given was not properly appreciated. He proceeds further to assume that Maher Ali must have disposed of his entire property by the will and that with the consent of all his heirs. Reference is in this connection made to the conduct of Gour Bibi and the eldest son of Maher Ali viz : Velayet Ali and of the second son Entaj Ali. It is then stated that as the other heirs of Maher Ali have not appeared in this suit consent by them may be presumed. Mere absence from the present suit is not sufficient under the law to presume consent by such heirs. From passive acquiescence consent may be presumed as indicated already but whether there had been a passive acquiescence by some or more of the heirs of Maher Ali has not been properly considered by the lower Appellate Court. There is no consideration of the question whether the other heirs had at any previous stage given their consent to the bequest in excess of the legal third.
16. In this view the judgment and decree of the Court of Appeal below are set aside and the case remitted to the Court of the learned Subordinate Judge for rehearing according to Law keeping in view the principles governing a bequest in excess of the legal third. All the points which were available to the parties during the hearing of the appeal in the lower Appellate Court will be considered by the Court during the rehearing. Costs of this hearing will abide the result.