JUDGMENT - P.B. SAWANT, J.:---Plaintiff Shahajadibi is the widow of late Bapubhai Momin, a Muslim governed by the Hanafi School of Mohamedan Law. Bapubhai owned a piece of agricultural land which is the subject matter of the suit. During his life time on October 9, 1944, he made a Will under which he bequeathed the entire land to one Bakshushaha who was his father's sister's son. Bapubhai died on 9-11-1949 leaving the plaintiff his widow, as the only heir. It appears that Bakshushaha renounced life and became a Fakir and his wife Hafizabi leased out the land in 1968 to defendants 2 and 3. Plaintiff Shahajadibi, therefore, filed the present suit in 1972 for recovery of the land from the defendants claiming the same in her capacity as the sole heir of her husband Bapubhai. The suit was registered by defendants 2 and 3, defendants No. 1 Bakshushaha remaining ex-parte. The defence was that Bakshushaha, whose wife had leased out the property to defendants 2 and 3 had become the owner of the entire land under the Will and the plaintiff had no right, title or interest left in the land. Alternatively, it was contended that defendants No. 1 had become owner by adverse possession and defendants 2 and 3 being his tenants were in legal possession of the land. The trial Court held that the Will made by Bapubhai in favour of Bakshushaha was invalid since under the Mahomedan law the bequest of the entire property was not permitted. The Court, therefore, decreed the plaintiff's suit. In appeal filed by defendant Nos. 2 and 3, the Appellate Court, held that the Will was valid to the extent of one-third of the bequest since under the Mahomedan law Bapubhai had power to bequeath up to one-third of his property. The Appellate Court, therefore, modified the decree and granted possession of two-thirds of the land to the plaintiff with a direction to partition the land. Aggrieved by this decision, both the plaintiff as well as defendants 2 and 3 have preferred the present cross Second Appeals. Plaintiff's Second Appeal is No. 796 of 1980 and the appeal preferred by defendant Nos. 2 and 3 is No. 636 of 1980. 2. Aggrieved by this decision, both the plaintiff as well as defendants 2 and 3 have preferred the present cross Second Appeals. Plaintiff's Second Appeal is No. 796 of 1980 and the appeal preferred by defendant Nos. 2 and 3 is No. 636 of 1980. 2. The appeals having come before the learned Single Judge, by his decision and order, of January 27, 1987 he referred the matter to the Division Bench since though he was of the view that the Will was valid to the extent of one-third of the estate, another learned Single Judge of this Court in a decision reported in 1986(1) Bom.C.R. 557 (Yasin Imambhai Shaikh v. Hajarabi w/o Shaikh Abbas)1, has taken the view that where the entire property is bequeathed, the whole of the bequest becomes invalid. 3. Before us Mr. Gokhale appearing for the defendants-appellants in Second Appeal No. 636 of 1980 contended that the view taken by the learned Single Judge in 1986(1) Bom.C.R. 557 (supra) was erroneous since under the Mahomedan Law, a Mahomedan is empowered to bequeath one-third of his property and the bequest becomes invalid only to the extent that it is in excess of one-third. He also submitted that where a Mahomedan as in the present case dies leaving his widow as the only heir and there are no other blood relations, her share being one-fourth in the estate of her husband, the plaintiff would get only one-fourth of the two-thirds of Bapubhai's estate, that is one-fourth of the estate which is in excess of the bequeathable one-third. She would therefore, be entitled to only one sixth of the land and hence the balance of the estate would fall to the share of Bakshushaha, and as Bakshushaha's tenants, the appellant-defendants would be entitled to remain in possession of the 5/6th of the land. As against this Mr. Abhale, the learned Counsel appearing for the plaintiff, submitted that the view taken by the learned Single Judge in 1986(1) Bom.C.R. 557 (Supra) that when a Mahomedan makes a bequest of his estate in excess of one-third, the entire bequest becomes invalid, is supported by a decision of the Full Bench of the Allahabad High Court reported in 1908 I.L.R (30) Allahabad 153 (Fahmida Khanum v. Jafri Khanum)2. In that view of the matter, no part of the estate goes to Bakshushaha and, therefore, defendants 2 and 3 are not entitled to claim tenancy from Bakshushaha and remain in possession of the land. As regards the second submission, he contended that the same was being agitated for the first time in this appeal and, therefore, it should not be considered. He had, however, no comments to offer on the position of law with regard to the share of the widow when a Mahomedan dies leaving widow as his only heir. 4. The questions which, therefore, fall for our consideration are : (1) Whether the bequest made by a Mahomedan of his estate in excess of one-third is invalid in its entirely or only to the extent of such excess; and (2) Whether Bakshushaha was entitled to one-third or 5/6th of the estate under the Will and whether , therefore, the appellants-defendants are entitled to remain in possession of 1/3rd or 5/6th of the land in dispute. 5. It will be convenient first to refer to the distinguished authors who have interpreted the Mahomedan Law on the subject. Sir R.K. Wilson in his Anglo-Mohammadan Law, Sixth Edition (1930) in paragraphs 270, 271, 272, 272-A, 273 and 274, pages 303 to 307 while dealing with the extent of the testamentary power as regards property, has stated as follows : "270. Limit of the testamentary Power: Bequests by a Muslim can only take effect to the extent of one-third of the net assets remaining after payment of his funeral expenses and debts, unless the excess is rendered valid by the consent, given after the death of the testator, of the inheritors whose rights are infringed thereby, or by the fact of there being no such inheritors. "271. Bequests in excess of the limit abate rateably. Exception: Where the testator has made a number of bequest which collectively exceed one-third, and are not allowed by the heir, the rule is that they must abate rateably, provided that they are all bequests to individuals. But if some of the bequests are for pious purposes expressly ordained in the Koran, while others are for pious purposes not expressly ordained, the former will take precedence of the latter ; and the bequests for non ordained pious purposes will be satisfied in the order in which they follow each other in the Will. But if some of the bequests are for pious purposes expressly ordained in the Koran, while others are for pious purposes not expressly ordained, the former will take precedence of the latter ; and the bequests for non ordained pious purposes will be satisfied in the order in which they follow each other in the Will. It is uncertain whether, as between bequests "to Almighty God" and bequests to individuals, precedence should be given to the former or the latter, or whether both should abate rateably. "272. Bequest to heir, void : A bequest to a person entitled to inherit is void unless the other inheritors give their consent, after the death of the testator, to its taking effect . "272 A. If bequest are made to heirs and strangers, the bequests to heirs are not valid without the other heirs' consent, even if the aggregate of bequests does not exceed a third ; the bequests to strangers are valid without such consent if the aggregate of valid bequests does not exceed a third; if it exceeds a third, the consent of heirs is required ; in default of such consent, the strangers' bequests abate rateably, as in section 271. "273. To a stranger after bequest to her for life, also void : If a testator bequeaths property to one of his heir for lifes, or to two or more of his heirs for their joint lives and the life of the survivor, with remainder to some stranger to whom he might lawfully bequeath it, or to some lawful charitable purpose, then the failure of the original bequest, for want of assent of the other heirs will involve the failure of the subsequent bequest also. "274. Effect of consent of heirs : When a bequest which would otherwise be void is rendered valid by the consent of the heirs, the legatee is considered to derive his title from the testator rather than from the heirs, and the actual possession is not necessary to its completion". 6. Syed Ameer in his Tagore Law Lectures in 1884 on Mohammedan Law, 4th Edition (1985) at page 569 quotes the remarks of M. Sautarya and on page 589 states as follows : "According to all the schools a bequest to any of the heirs is invalid without the consent of the others. 6. Syed Ameer in his Tagore Law Lectures in 1884 on Mohammedan Law, 4th Edition (1985) at page 569 quotes the remarks of M. Sautarya and on page 589 states as follows : "According to all the schools a bequest to any of the heirs is invalid without the consent of the others. Whether the person in whose favour the devise is made is an heir or not must be determined not at the time of the will but at the testator's death.. " "A bequest", says the Radd-ul-Muthar, "to a stranger (or non-heir) is valid to the extent of one-third of the testator's estate, but it may be validated respecting a larger proportion with the assent of the heirs after the death of the testator ; consent given during the lifetime of the testator is of no effect ; the consent in order to be effectual must be not only after the death of the testator, but the parties must be adult and sui juris. The consent of heirs before the death of the testator is ineffectual because the right to the inheritance does not vest in them until his death. When consent is given according to 'us' the legatee would derive his title from the testator ; according to Shafei, the right will be derived from the consenting heir. When some of the heirs consent and others do not, the legacy will be valid in proportion to the shares of the assenting heirs. It is requisite that the consenting heirs should be adult and possessed of understanding. Consequently the consent of the infant and the non compos mentis is not valid. The consent of the person who is sick is subject to the same rules as his legacy. Whether a person is an heir or not must be considered with reference to his right of inheritance at the time of the testator's death. Therefore, when a person leaves a legacy to his brother at a time when he has no children, and afterwards children are born to him and he dies, the legacy to the brother is valid, for in the presence of the children he has no right of inheritance. Therefore, when a person leaves a legacy to his brother at a time when he has no children, and afterwards children are born to him and he dies, the legacy to the brother is valid, for in the presence of the children he has no right of inheritance. Similarly if a person were to make a bequest to his wife and afterwards were to divorce her, the legacy would be valid for she is not an heir at the time of the testator's death ; the marriage relation having been dissolved, the right of inheritance also fall to the ground..." "If a man were to make a bequest in favour of a part of his heirs, it is not valid because of a traditional saying of the Prophet, "God has allotted to every heir his particular right", and also because a Will in favour of a part of the heirs is an injury to the rest, and therefore, if it were deemed legal, it would induce a breach of the ties of kindred. Besides it is said in the traditions "a bequest to particular heirs is unjust." It is to be observed that in judging whether the legatee be an heir or otherwise, regard is paid to the time of the testator's death and not, as pointed out already, to the period of making the Will. If some of the heirs should give their consent and part withhold it , the bequest then becomes valid in proportion to the amount of the shares of those who consent, and invalid in proportion to the amount of the shares of the others--- The rights of the heirs, say the jurists, are thus irrevocably fixed by the Koran, and the harmony which has been established by the devine law among the different decrees of relations who would be entitled to succession to the estate of a deceased person should not be broken by his leaving a larger share to one heirs. The author of the Multeka has declared in consequence that a testamentary disposition is null from the time when the succession opens, when the legatee is an heir, and the Maliki lawyer, Khalil ibn-Ishak, has held that all legacies to the heirs are void--- "All the Sunni schools agree in holding that a bequest in favour of an heir is invalid. A legacy, says the author of the Multeka, in favour of one heir is valid if the other heirs consent thereto. And the Shafei lawyer, Abu Khoja, has laid down the principle in similar terms, and the Maliki jurist, Khalil ibn-Ishak, has declared that where a disposition is made in favour of an heir and ratified by the other heirs, the legacy will take effect as an act of liberality on their part. According to the Shiah law, however, as we shall see presently, a testator can leave a legacy to an heir so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of the other heirs, but where it exceeds one-third it is not valid without the consent of all the heirs. Such consent may be given either before or after the death of the testator. Under the Sunni law ratification must always be after the death, an assent before death being of no effect." 7. Neil B.E. Baillie in his Digest of Mohammedan Law (1865) on pages 614-15 has stated as follows : "A bequest to a stranger is valid without the consent of the heirs, but not beyond a third of the estate, unless assented to by them after the testator's death. It is implied that they are of full age and no regard is had to their permission granted during the life time of the testator. When a man bequeaths his whole estate, having no heirs, the bequest takes effect and there is no occasion for any assent on the part of the beit-ool-mal. or public treasury. A bequest to an heir is not lawful, according to "us", without the assent of other heirs. If it be made to an heir and a stranger, it is valid as to the share of the strange and dependent as to the share of the heir on the permission of the other heirs. If permitted by them, it is lawful ; and if not permitted by them it is not void-no regard being had to a permission granted in the lifetime of the testator ; so that they may afterwards retract." 8. If permitted by them, it is lawful ; and if not permitted by them it is not void-no regard being had to a permission granted in the lifetime of the testator ; so that they may afterwards retract." 8. Mulla in his Principles of Mahomedan Law, Eighteenth Edition (1977) in paragraph 117 on page 137 has stated that 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. He has also reiterated that in determining whether a person is or is not a 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. Thereafter in paragraphs 118 and 119 he has observed as follows : "118. Limit of testamentary power :---A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator... "119. Abatement of legacies.---If the bequests exceed the legal third, and the heirs refuse their consent, the bequests abate rateably." 9. Faiz Badruddin Tyabji in his Muslim Law, Fourth Edition, (1968) in paragraph 675 page 754 has defined the "bequeathable third" to on mean one third of the estate after payment of the funeral expenses and the debts of the deceased, and also such property as does not pass under the Muslim law of succession but a special law. While defining and commenting upon the extent of the property that a Muslim can bequeath, in paragraph 669, 670, 671 and 672 he has stated : "669. Under systems of Muslim law other than the Ithana Ashari Shite law a testamentary disposition is (unless validated under sections 670 and 671), invalid, if, and in so far as, it purports--- (a) to dispose of more than the bequeathable third ; or (b) to benefit any of the testator's heirs ; or (c) to benefit an object opposed to Islam as a religion. In determining under section 66(a) whether the bequests exceed the bequeathable third, (i) bequests that are void for some reason other than because they are in excess of the bequeathable third are not taken into account; (ii) where the bequest is of the usufruct, its capital value must be determined and that value adopted for the purposes of section 669(a). "670. (1) Bequests in excess of the bequeathable third and/or in favour of any heir (section 669), 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 or by passive acquiescence such consent has been held to be valid and effective though the heir is insolvent when he consents. (2) Where some of the heirs consent and the others do not, the bequest (in so far as its validity needs consent) is payable out of the shares of the consenting heirs alone. (3) A testamentary disposition validated under section 670(1) operates (except under Shafii law) as the act of the testator, and not as a gift by the heirs ; and to complete the transfer of the bequest to the legatee it is not necessary (except under Shafii law) that possession of its subject be transferred. "671. In the absence of heirs and as against the right of the State to take by escheat, the testator may bequeath the whole of his property by Will. Where a testator dies leaving only a wife/husband as his/her and no blood relations, if he is a man, he is entitled to bequeath of 5/6 of his estate ; and if a woman to bequeath 2/3 of her estate." "672. The Ithana 'Ashari Shitte law agrees with the law stated in sections 669-671 with the following modifications. Where a testator dies leaving only a wife/husband as his/her and no blood relations, if he is a man, he is entitled to bequeath of 5/6 of his estate ; and if a woman to bequeath 2/3 of her estate." "672. The Ithana 'Ashari Shitte law agrees with the law stated in sections 669-671 with the following modifications. (a) the consent validating bequests under section 670, may be lawfully given in the life-time of the testator, and need not be ratified after his death ; (b) the testator may, without the consent of his heirs, lawfully bequeath--- (i) legacies to any of his heirs, payable out of the bequeathable 1/3; (ii) any part of his estate (even if it exceeds 1/3) for the performance of such religious duties as are incumbent on himself ; (iii) the whole or any part of his estate by way of muzaribat or qeraz on the terms of an equal division of profits between the legatee and the testator's heirs, sed quaere. 10. Asaf A.Y. Fyzee in his book on Outline of Muhammadan Law, Fourth Edition (1974), in paragraph 75 on page 360 dealing with what can be bequeathed and the bequeathable 3rd and mainly relying upon what is stated by Tyabji in Muslim Law (supra) has stated the law follows : "No Muslim can bequeath more than one-third of the residue of his estate, after the payment of debts and other charges. When a Muslim dies, his debts and funeral expenses are to be paid first ; thereafter, out of the residue only one-third can be disposed of by Will. If the bequest exceeds the bequeathable third, they do not take effect without the consent of heirs. Such consent is to be obtained after the death of the testator in Hanafi law ; whereas in other law it may be obtained either before or after the testator's death. Further where the bequeath taken in the aggregate exceeds the bequeathable third and the heirs do not consent in Hanafi law, the bequest abates rateably." 11. We may now usefully summarise the position of law on the subject as interpreted by the aforesaid learned authorities. According to this exposition of law, a Muslim cannot bequeath more than one-third of his property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. We may now usefully summarise the position of law on the subject as interpreted by the aforesaid learned authorities. According to this exposition of law, a Muslim cannot bequeath more than one-third of his property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. When, however, there are no heirs or other heirs left by him, he can dispose of his entire property in favour of the stranger or the sole heirs as against the right of the State to take by escheat. If the property bequeathed is in excess of one-third of the estate, the excessive bequest is not valid unless the heirs, or other heirs, (if the bequest is in favour of one or some of the heirs) give their consent. Under the Hanafi law the consent has to be given after the death of the testator, whereas under the other schools of law it can be given either before or after the death of the testator. The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess, whether the bequest is in favour of the stranger or the heir of heirs. Where, however, there are more bequests than one which together excess one-third of the estate, the bequests get reduced rateably. The bequests in favour of heirs are discouraged under the Mohamedan Law, because the shares of the heirs are fixed and no bequest can be made to deprive the heirs of their rightful share. The object is also to avoid internecine disputes between the heirs. While bequest in favour of an heir, according to one Mohamedan School of law is entirely invalid even if it is confined to the bequeathable third, according to another school, it is valid only to the extent of one-third. It also, however, appears that where other heirs consent to the bequest, according to both schools, the bequest is valid whether it is of one-third or of more of the estate. Where only some of the heirs consent it is valid only to the extent of the share of the consenting heir or heirs. 12. It also, however, appears that where other heirs consent to the bequest, according to both schools, the bequest is valid whether it is of one-third or of more of the estate. Where only some of the heirs consent it is valid only to the extent of the share of the consenting heir or heirs. 12. It also further appears that where a testator dies leaving only a wife/husband as her/his heir and no blood relations, if husband, he is entitled to bequeath 5/6 of his estate and if a woman to bequeath 2/3 of her estate. (See para 671 of F.B. Tyabji's Muslim law, supra). 13. It is in the light of this enunciation of law by the learned authors that we have to examine the cases which are cited before us at the Bar. The first is the decision of the Full Bench of the Allahabad High Court in Fahmida Khanum v. Jafri Khanum, 1908 I.L.R. Allahabad Volume XXX page 153. That was a case where the dispute was between two sisters who were both heirs of their deceased mother one Musammat Muhammadi Khanum who had died on October 3, 1905, leaving her husband Husaini, one son Kallu and two daughters the rival parties to the suit. Son Kallu died on January 31 and Husaini on February 7, 1906. The property, therefore, belonged in equal shares to the two daughters, but the defendant daughter had taken exclusive possession thereof on February 25, 1906. The property in question was a house and certain movable property. In the plaint, which was originally filed, the plaintiff daughter had alleged that the house had belonged to her father Husaini. It was later on amended to contend that the property had belonged to her mother. The suit was filed for the partition of the house and for recovery of possession of the halfs share in ornaments. The defendant contended that the amendment to the plaint was improper, that the house had belonged to her father Husaini and that he had bequeathed the whole of it to the defendant by a Will dated February 2, 1906. She also contended that she had expended Rs. 300/- on her father's death ceremony and that some of the ornaments claimed belonged to her as her own property. The Court of the first instance gave the plaintiff, a decree for one-third of the house and ornaments. She also contended that she had expended Rs. 300/- on her father's death ceremony and that some of the ornaments claimed belonged to her as her own property. The Court of the first instance gave the plaintiff, a decree for one-third of the house and ornaments. Both sides appealed and the appeals were heard together. The lower Appellate Court held that the Will set up by the defendant was wholly invalid and modified the Munsif's decree by giving a decree for one-half instead of one-third of the property in suit. The defendant appealed to the High Court. On these facts, the High Court upheld the decision of the lower Appellate Court. While doing so, the Court observed that it was settled that a Muhammadan testator, governed by the Shia School of law, as in that case cannot make a valid bequest of all his property to one of his heirs to the exclusion of the other heirs without the consent of all the heirs obtained subsequent to his death. The Court further observed that the Sunni School agrees in holding that a bequest in favour of an heir is invalid but, according to the Shia law it would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not exceed one-third of his estate, and that such a legacy would be valid without the consent of the other heirs. However, where the legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of all the heirs given after and not before the death of the testator, had been obtained. However, where the legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of all the heirs given after and not before the death of the testator, had been obtained. The Court then referred to Beillie's Digest on Mohammedan Law, Syed Ameer Ali on Mahommedan Law, Sir Roland Wilson's Digest on Anglo-Muhammadan Law (supra) and the Institutes of Musalman Law by Nawab Abdul Rahman, the benefit of which we did not have since the book is not available but the extract from the later author's Institutes at page 278 from which is quoted in the said judgment and on which the Court has relied is as follows : "The alienation of one-third to a portion of the heirs will not be legal without the assent of the other heirs subsequently to the death of the testator, because their benefits, already sufficiently secured by the law, are not within the reason of the rule on which testamentary disposition is established, and such a bequest would, as the certain occasion of family dissension, be opposed to public policy." After thus referring to the comments of the learned authors, the Court held that the Will in favour of the defendant whereby the bequest of the entire property was purported to be made in her favour was invalid in its entirety and, therefore, upheld the decree of the lower Appellate Court dividing the property equally between the plaintiff and the defendant, that is between the two sisters. 14. We fail to understand as to how this authority can be relied on by plaintiff Shahajadibi in the present case for admittedly this was a case where the will of the entire property was in favour of one of the heirs. It was not a case of a Will in favour of a stranger, as in the present case. Admittedly, as pointed out earlier, Bakshushaha, defendant No. 1 was not an heir of the deceased testator Bapubhai. All that this decision lays down is that where the bequest is of the entire property and is in favour of a heir to the exclusion of the other heir or heirs, it is invalid without consent of other heirs. According to one school it is invalid in its entirely and according to another school, only to the extent it exceeds the bequeathable third. According to one school it is invalid in its entirely and according to another school, only to the extent it exceeds the bequeathable third. As we have shown above, this is also the view of the learned interpretaters of Mohamedan law. 15. The only other case which was cited before us was the decision of the learned Single Judge of this Court reported in 1986(1) Bom.C.R. 557 Yasin Imambhai Shaikh, since deceased through legal heirs v. Hajarabi wife of Shaikh Abbas and ors. The facts of this case were that one Yasin Shaikh had filed a suit alleging that one Mariyambi had died leaving a Will under which Yasin was entitled to one third of the property of which he was in possession and that the other heirs were trying to interfere with his possession. Hence Yasin had sought an injunction to restrain the other heirs from interfering or disturbing his possession of that portion of the property bequeathed to him. He had also prayed that if it was found that he was not in possession of the property, then that much property should be carved out in accordance with the Will and that the property should be given in his possession. The trail Judge had dismissed the suit. Against the dismissal, the heirs of Yasin, who in the meanwhile had died, preferred an appeal, which was dismissed. The heirs of Yasin then filed a Second Appeal which had came up for hearing before the learned Single Judge. In paragraph 6 of his judgment, the learned Single Judge dealing with this point observed as follows: "But be that as it may, Mr. Vaze has contended that Mahomedan Law provides that a Mahomedan cannot by Will dispose of more than 1/3 of the surplus of his estate after payment of funeral expenses and debts. That a bequest in excess of 1/3 cannot take effect, unless the heirs consent thereto after the death of testator. In this case admittedly the Will disposed of more than 1/3 of the estate after the payment of funeral expenses and debts, and there is no evidence that the heirs have consented to such a bequest. In view of this also the appellants' claim under the Will must fail, whatever, may be their other rights as heirs to the property of deceased which they may agitate in an appropriate forum. Mr. In view of this also the appellants' claim under the Will must fail, whatever, may be their other rights as heirs to the property of deceased which they may agitate in an appropriate forum. Mr. Vaze's contention is substantial," It is obvious from the facts of the case that this was also a case where the bequest of the entire property was made in favour of a heir. There is further no discussion as to whether the parties were Sunnis or Shias. As has been pointed out earlier, the different schools of law are not unanimous on whether a bequest in favour of one of the heirs even when it is limited to the bequeathable 1/3rd is invalid without the consent of the other heir. 16. But in the present case it is not necessary for us to go into the said question since the bequest is in favour of a stranger and not a heir. All the schools of Mahomedan Law are unanimous that a bequest in favour of a stranger to the extent of the bequeathable third is valid and requires no consent of any heir. It is only if the bequest in favour of a stranger is in excess of the third of the estate that such a consent is obligatory. Hence it will have to be held that in any case the bequest made by the testator in favour of defendant No. 1 Bakshushaha was valid at least to the extent of the one-third of the testator's estate. 17. The second question which, no doubt, has been raised on behalf of the defendants, for the first time, in the Second Appeal can also be disposed of by us since it is a question of law and the matter is at large before us on all points of law. As pointed out earlier while summarising the position of law, a widow's share in her husband's property is limited only to one-fourth of his estate, when there are no other blood relations of the husband left. This will also mean that when the sole heir left is the widow and the bequest of the entire property is made in favour of a stranger the bequest will have to be upheld to the extent of the whole of the estate minus the share of the widow. This will also mean that when the sole heir left is the widow and the bequest of the entire property is made in favour of a stranger the bequest will have to be upheld to the extent of the whole of the estate minus the share of the widow. There is no reason why such a consequence should not follow in law, for even where the consent of the heir is needed to validate the bequest in excess of one-third that consent is required so that the heir or heirs concerned are not deprived of their rightful share in the estate. That rightful share in estate in the present case being only of the widow and limited only to one-fourth of the unbequeathable estate of the testator, that is 2/3rds of the estate, the plaintiff is entitled to only one-fourth of the two thirds of the said estate. In other words, she is entitled only to one-sixth of the entire estate. This being the case, the suit can be decreed only to the extent of one-sixth of the land in dispute. 18. Accordingly we modify the decree passed by the lower Appellate Court and declare that the plaintiff would be entitled to only one-sixth of the land in dispute and defendant No. 1 to 5/6th of it. The defendants 2 and 3 will therefore be entitled to retain with them 5/6th of the land. The defendants are, therefore, directed to give to the plaintiff actual possession of her 1/6th share in the suit lands, after partitioning the same. The partition of the land shall be effected through the Collector of Ahmednagar under section 54 of the Code of Civil Procedure, 1908. The plaintiff do recover mesne profits of her 1/6th share in the suit land from the date of the suit till she gets possession of it. The quantum of mesne profits shall be decided in a proceeding under Order XX, Rule 12 of the Code of Civil Procedure, 1908. 19. Both the appeals are disposed of accordingly. Parties in both the appeals to bear their own costs throughout. Order accordingly. -----