This is an appeal against the judgment and order dated 21.5.82 passed by the Additional District Judge, Kamrup, Gauhati in Probate Title Suit No.15 of 1963 (No.l of 1980) whereby the application for probate was dismissed. The facts of the case may be briefly stated as under. The appellant-petitioner, Harmuj Ali Bora, filed an application for grant of probate of the will annexed to the petition in respect of land measuring 56 B. 2 K. 15 Lechas. The will was executed by his father late Gorni Bora who died on 30th April, 1961. Besides the appellant-petitioner, Gorni Bora left behind the following other heirs 1. Musstt. Samnur Bibi ... Wife 2. Md. Ali Akbar Bora ... Son 3. Md. Abed Ali Bora ... Son 4. Golbibi ... Daughter 5. Fulbibi ... Daughter. The case of the appellant-petitioner was that the will was executed by his father with the consent of the two other sons, named above. It was duly registered and the consent of the wife as well as the two daughters had also been obtained by the executant. An objection was filed to the application for probate on the grounds, inter alia, that no will was executed in favour of the appellant-petitioner; that the alleged wilt was not duly attested; that it was a forged one; that it was made without the consent of the other heirs which was against the principles of Mahomedan law. On the aforesaid grounds, it was contended that no probate could be granted to the appellant. The learned Additional District Judge framed a number of issues, examined five witnesses for the petitioner and one for the objector and on consideration of the facts and circumstances of the case the evidence on record and the submissions of the parties, held that the will was not valid as the consent of the other heirs to the execution of the will was absent; that even after the death of the testator the other heirs did not give their consent which was evident from, the fact that they filed objections against grant of probate; that the attestation by the two witnesses was not proved which according to it was an essential pre-requisite of a valid will under the Mahomedan law. The learned trial Court, therefore, decided all the issues (except issue No,4 which was not pressed) against the appeal a-it-petitioner and dismissed the application for probate. The learned trial Court, therefore, decided all the issues (except issue No,4 which was not pressed) against the appeal a-it-petitioner and dismissed the application for probate. Against the aforesaid judgment and order the present appeal has been filed. Mr A.H. Saikia learned counsel, appearing for the appellants, submits that the impugned judgment is not tenable in law; that the findings arrived at by the learned Additional District Judge are erroneous; that under the Mahomedan law attestation is not a necessary pre-requisite for a valid will that so far as consent of the other heirs to the bequest by will is concerned, even if it was found that consent of the other heirs was not proved, the bequest would be valid to the extent of one-third of the property, inasmuch as for bequest to that extent no consent is required under the Mahomedan law. It is therefore, submitted that the learned Court below ought to have held the will to be valid at least to the extent of one-third of the property of the testator. Also heard Mr. J.N. Sarma, learned counsel for the respondents-opposite parties. Mr.Sarma submits that bequest to an heir would be void altogether if it is made without the consent of the other heirs. The rule regarding one-third does not apply to such a case. The first question that arises for consideration is whether execution of a will by a Mahotnedan is not valid unless it is attested by two attesting witnesses. In the instant case, the attestation was not proved and, therefore, the learned Court below held the will to be not valid. I have considered the rival submissions. My opinion, on this point, is as follows. Mahomedan law does not prescribe any particular form of will. Wills may be made either verbally or in writing. No writing is required to make a will valid. Even an oral declaration is suffici­ent. If the will is in writing it need not be signed and if signed, it need not be attested by witnesses. So long as the intention of the testator can be ascertained, the will takes full effect. The validity of a will made in writing is in no way affected due to non-attestation thereof by witnesses or failure to prove the attestation. The reason, as stated above, is that as a Mahomedan will does not even require to be in writing, attestation is irrelevant. The validity of a will made in writing is in no way affected due to non-attestation thereof by witnesses or failure to prove the attestation. The reason, as stated above, is that as a Mahomedan will does not even require to be in writing, attestation is irrelevant. In view of the aforesaid legal position in regard to the form of the will, I am of the opinion that the learned Court below committed error of law in holding that the will was not valid owing to failure to prove the attestation. The next question that arises for consideration relates to the limit of the testamentary power of a Mahomedan. The factual position in the instant case is that the entire property was bequeathed to one of the sons. The other heirs, namely, 2 sons, 2 daughters and the wife did not consent to the bequest. After the death of the testator, they filed objection to the application for probate which also clearly indicates absence of their consent. The point for determination is what is the effect of lack of consent of the other heirs to the bequest. In this connection we may refer to Mulla's Principles of Mahomedan Law, wherein it is stated as follows : "117. Bequests 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 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. 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." In Tyabji's Muslim law, the legal position in this regard is stated as below '. "669. Under systems of Muslim law other than the Ithna 'Ashari Siiitte law a testamentary disposition is (unless valid­ated under Ss. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator." In Tyabji's Muslim law, the legal position in this regard is stated as below '. "669. Under systems of Muslim law other than the Ithna 'Ashari Siiitte law a testamentary disposition is (unless valid­ated under Ss. 670 & 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. 670. (1) Bequests in excess of the bequeathable third and/or in favour of any heir (s.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 s.670 (1) oper­ates (except under Shaffi 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 Shaffi law) that possession of its subject be transferred."1 In other authoritative works on Mahomedan law also, discussion is found on the same lines. On a careful scrutiny of the law on the subject, the following principles emerge. The power of a Mahomedan to dispose of his property by will is limited in two ways. A bequest to an heir is invalid unless it is consented to by the other heirs after the death of the testator. It is in no way binding on the other heirs. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed one third of the surplus of the estate after the payment of the funeral expenses and debts and it is made to a person who is not an heir. It is in no way binding on the other heirs. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed one third of the surplus of the estate after the payment of the funeral expenses and debts and it is made to a person who is not an heir. A bequest in excess of the legal third to the non-heirs, however, do not take effect unless the heirs consent there to after the death of" the testator. If the heirs do not consent, the bequest in excess of the legal third, shall go to the heirs in the shares prescribed by the law. The difference between bequest to heirs and to a person other than heirs is that in the former the entire bequest is not valid unless the other heirs consent to the bequest after the death of the testator, whereas in the latter, bequest to the extent of the legal third is effective and valid. The consent of the heirs is necessary only to give effect to the bequest in excess of the legal third. If the heirs do not consent to the same, the one-third of the estate shall go to the person named in the will and bequest of the remaining two-third shall not take effect. It will be divided among all the heirs of the testator. It is thus abundantly clear that a Mahomedan is competent to dispose of by will only one-third of the surplus of his estate and that too to a non-heir as this power is not subject to the consent of the heirs. Bequest to that extent take effect immediately on the death of the testator. The question of consent in case of bequest to non-heir is relevant only in regard to the balance two-third. However, so far as bequest to heir is concerned, no part of it shall be valid unless it is cons­ented to by the other heirs after the death of the testator. In view of the aforesaid legal position, I am of the opinion that in the instant case the bequest made to an heir was not valid as it was not consented to by the other heirs after the death of the testator. In that view of the matter, I do not find force in the submission of Mr. In view of the aforesaid legal position, I am of the opinion that in the instant case the bequest made to an heir was not valid as it was not consented to by the other heirs after the death of the testator. In that view of the matter, I do not find force in the submission of Mr. Sdikia, the learned counsel for the appellant, that bequest to the son in the instant case to the extent of one third of the estate should be held to be valid. The instant case is not a case of testamentary disposition to a non-heir. It is a case of bequest to one of sons, which cannot be valid without the consent of other heirs after the death of the testator. In that view of the matter, I uphold the decision of the learned trial Court refus­ing to grant probate. This appeal is accordingly dismissed. No order as to costs.