JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is directed against the judgment and order dated 15.06.2010 passed by the learned District Judge, Jorhat in Probate Title Suit No. 4/2008, refusing to grant probate in favour of the appellant. The present appellant as plaintiff filed an application under Section 276 of the Indian Succession Act, for granting probate in respect of a WILL made by her father late Syed Badiuz Zaman, who died on 19.8.2006. The case of the petitioner was that her father late Syed Badiuz Zaman executed a registered WILL in favour of the petitioner on 08.05.2003, in respect of the property described in the schedule of the petition as well as the said WILL. The respondent being the sister of the petitioner, resisted the petition by filing a written objection stating inter-alia that her father, the alleged testator was suffering from mental ailments for about 30 years before his death and he was not mentally fit to execute any WILL. It has also been contended that the testator never intended to make such WILL and the alleged WILL was prepared forcibly without the knowledge of the opposite party, taking advantage of the fact, that at the relevant time the testator was staying with the petitioner. 2. On the basis of the above pleadings of the parties, learned trial court framed the following issues: 1. Whether the petition filed by the petitioner is maintainable in law as well as in facts? 2. Whether the testator namely Badiyuz Zaman was mentally and physically fit to execute the WILL? 3. Whether the WILL was executed by the deceased voluntarily? 4. Whether the petitioner/plaintiff is entitled to get Probate of the WILL? 5. To what relief’s the parties are entitled to? 3. The plaintiff/appellant examined 4 witnesses including herself. The defendant/respondent also examined 3 witnesses in support of her objection. After hearing the parties, the learned District Judge dismissed the petition for probate. 4. Aggrieved by the judgment and order of the learned District Judge, the plaintiff has preferred the instant appeal. 5. I have heard Mr. PS Deka, learned counsel for the appellant and Mr. K. Bhattacharjee, learned counsel for the respondent. 6. After hearing the parties, the learned District Judge dismissed the petition for probate. 4. Aggrieved by the judgment and order of the learned District Judge, the plaintiff has preferred the instant appeal. 5. I have heard Mr. PS Deka, learned counsel for the appellant and Mr. K. Bhattacharjee, learned counsel for the respondent. 6. The learned counsel for the appellant relying on section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, submitted that the present WILL as well as the probate proceeding should be governed by the Indian Succession Act, but the learned Trial Court committed error by holding that the Succession Act shall not apply in the instant case. It has also been contended that the execution and genuineness of the WILL was duly proved by the plaintiff and therefore, the learned trial Court ought not to have dismissed the petition. 7. Countering the above submission, learned counsel for the respondent submitted that the WILL having been executed by a Muslim, shall be governed by Muslim personal law. The learned counsel for the respondent relying on the decision of the Apex Court in Shemalal v. Hasan Khani Rawther & Ors. reported in (2011) 9 SCC 223 , Sajathi Bi v. Fathima Bi & Ors. reported in 2002 STPL 9820 Madras as well as Rijia Bibi v. Md. Abdul Kachem reported in 2013 STPL 3720 further contended that a Mohammedan cannot by WILL dispose more than one third of surplus of his estate after payment of funeral expense and debts and in the instant case, the entire property of the testator was the subject of the WILL and therefore, the WILL was void for want of consent of the legal heirs and also for the extent of property bequeathed being beyond 1/3 rd of the testators estate. 8. Section 58 under Part-VI of the Indian Succession Act reads as under: General application of Part - (1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by Section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jania; nor shall they apply to any WILL made before the first day of January, 1866. (2) Save as provided in sub-section (1) of by any other law for me time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession. 9. Part-VI of the Indian Succession Act deals with the testamentary Succession. A plain reading of Section 58 makes it clear, that part-VI of the Indian Succession Act, dealing with the testamentary Succession does not apply in respect of testamentary succession of property by any Mohammedan. Section 213(2) of the Indian Succession Act exempted the WILL made by Mohammedan from the purview of Section 213(1) which mandates that no right as executor or legatee can be established in any Court of justice, unless a Court grants probate of the WILL, under which the right is claimed or a letter of administration is granted by the competent Court. Sub-section (2) of Section 213 lays down that this Section shall not apply in case of a WILL made by Mohammedan. Clause 131 of the Principles of Mohammedan law by Mullah also lays down that a Mohammedan WILL may, after due proof, be admitted in evidence even though no probate had been obtained. It is pertinent to mention that in addition to the matter enumerated in Section 2 of the Sariat Act 1937, personal law shall also apply in respect of adoption, WILL and legacies by virtue of Section 3 of the Sariat Act. What therefore follows is that the requirement of probate has been exempted for a WILL by Mohammedan, both by personal law as well as in the Indian Succession Act. In view of the above provisions of law, the question whether the WILL made by a Mohammedan shall be governed by Muslim law or not is no longer res-integra. 10. In view of sub-section (2) of Section 213 of the Indian Succession Act and clause 131 of the Principles of Mohammedan Law by Mullah, it is also abundantly clear that in case of a WILL made by a Mohammedan, probate is not necessary and a WILL made by Mohammedan is admissible in evidence without obtaining any probate and the legatee or the executor, who wants any right under such WILL is entitled to prove the genuineness or otherwise of the WILL before the Court, which, it approaches claiming right under the WILL. Although as per Mohammedan law, as well as, the Indian Succession Act, probate is not necessary for a WILL made by a Mohammedan, there is no bar under the law in respect of applying for probate or obtaining a probate. Therefore, if an application is filed for grant of probate in respect of a WILL made by a Mohammedan, necessarily, the propounder of the will has to prove the execution and genuineness of the WILL as per the requirement of the personal law governing the WILL. If the will is a written one (WILL by a Mohammedan may be oral or written) the same has to be proved like any other document as per the provisions of the Evidence Act. Therefore, before adverting to the facts and evidence of the present case, it would be appropriate to have a look on the essentials of a WILL made by muslim. 11. Chapter 9 of the principles of Mohammedan Law by Mulla deals with the subject of WILL (wasiyat). The basic features and requirements of a will under the Muslim Law may be enumerated as under. 1. Under the Muslim Law a WILL may be oral or written. 2. Writing is not a legal necessity for a valid Muslim WILL. 3. In case of a written WILL, it need not be formal. 4. In Muslim law the intention (niyat) occupy an important place in respect of a WILL. 5. A Mohammedan of sound mind and not being a minor, may dispose of his property by WILL. 6. A WILL in favour of heir is not valid unless the legal heir sconsent to the bequest after the death of the testator. Any single heir may consent to bind himself to the extent of his own share. 7. A Mohammedan cannot dispose of more than a third of the surplus of his estate, after payment of funeral expense and debts. However, bequest in excess of 1/3rd can take effect and only when the heirs consent thereto after death of the testator. 8. If the legatee does not survive the testator, the legacy will lapse. 9. It is not necessary for a valid will that the property bequeathed should exist at the time of making the WILL. It is sufficient if it exists at the time of testators death 10. Executor of a WILL need not necessarily be a Mohammedan. 8. If the legatee does not survive the testator, the legacy will lapse. 9. It is not necessary for a valid will that the property bequeathed should exist at the time of making the WILL. It is sufficient if it exists at the time of testators death 10. Executor of a WILL need not necessarily be a Mohammedan. A WILL can be revoked expressly or impliedly. 12. Keeping in view the above requirement of law with regard to the WILL made by a Muslim, let us now examine the evidence and materials brought on record to ascertain whether the WILL in the instant case was valid and genuine one. 13. Both the parties are admittedly Muslims and the WILL was made by the testator in favour of one of the legal heir. When admittedly the WILL was made in favour of the heir, one of the basic requirement in respect of the WILL in favour of the heir is that other heirs have to give their consent to such WILL, after the death of the testator, because, bequest to an heir is not valid under the Muslim Law, unless the other heirs consent to the bequest after death of the testator. There is neither any pleading nor any evidence to show that the other heirs of the testator have given consent to the WILL after the death of the testator. Admittedly the plaintiff and the defendant are the only heirs left behind by the testator. There was no pleading or evidence to the effect that other heirs consented to the WILL. That apart, the objection against the granting of probate raised by none other than the heir of the testator, against the genuineness of the WILL clearly demonstrates the absence of consent, by the said heir in the present case, which necessarily renders the will invalid. 14. The plaintiff examining himself as Pw-1 deposed that her father left the plaintiff and the defendant as his legal heirs. She stated that the property of her father Syed Badiuz Zaman was situated at Royal Road, Jorhat and before death, her father bequeathed his property by registered WILL. As per the description of the property given in the schedule of the WILL, as well as the probate petition, land measuring 1 k 17 lessa, situated at Block-6 of Jorhat and 2 storied house on such land was the property bequeathed by the WILL. As per the description of the property given in the schedule of the WILL, as well as the probate petition, land measuring 1 k 17 lessa, situated at Block-6 of Jorhat and 2 storied house on such land was the property bequeathed by the WILL. According to Pw-1, he became a witness to the WILL on request of Pw-2. Pw-2 Indrani Chetia, advocate, stated that she drafted the WILL as per instruction of the testator. Pw-3 Abdul Mansur deposed that he signed the WILL as witness. According to Pw-3, the testator was physically and mentally fit at the time of execution of the WILL. The defendant has examined DW-2 Samsul Haque Hazarika and Dw-3 Syed Nazim Hussain to establish that the testator was suffering from mental illness at the relevant time. Dw-3 who is a doctor, stated that the testator was his grandfather, who used to call him for medical advice. He further stated that in 1997 when he examined the testator, he found that mental condition of the testator was unstable. According to DW-3 the testator was suffering from schizophrenia before his death and he also proved exhibit-A, certificate issued by him. Except putting suggestion to the DW-3 denying the factum of mental illness, testimony of Dw-3 with regard to mental illness of the testator remained unshaken. It is pertinent to mention that no specific form is prescribed for written WILL by a Mohammedan, inasmuch as, under Muslim law, a WILL may be oral also. In view of the WILL itself being invalid and void for the reasons i.e. WILL was in favour of an heir and there was no consent of other heirs after death of the testator and bequest being in respect of more than 1/3rd of the testators estate. Therefore, the proof of execution of the WILL is of no consequence in the present case inasmuch as the essential requirement of a valid Muslim WILL is absent. 15. Another aspect of the matter is that the plaintiff proved one power of attorney, whereby, the testator appointed power of attorney to sell the property which was the subject of the WILL and the said registered power of attorney was executed on 06-10-2005 i.e. after about 2 years of execution of the WILL. 15. Another aspect of the matter is that the plaintiff proved one power of attorney, whereby, the testator appointed power of attorney to sell the property which was the subject of the WILL and the said registered power of attorney was executed on 06-10-2005 i.e. after about 2 years of execution of the WILL. Even though it is assumed for the moment, that the testator made a WILL in the year 2003, exhibit-2 proved by the plaintiff herself clearly demonstrates that the testator changed his mind later on, and therefore, the WILL could not be considered as last wish of the deceased. Clause 128 of the Principles of the Mohammedan law by Mulla lays down that WILL may be revoked either expressly or impliedly. Therefore, the conduct of the testator as revealed from exhibit-2, intending to sell the property which was the subject of the will and for that reason appointing a power of attorney, clearly indicates that the testator changed his mind and impliedly revoked the WILL. Thus, in view of the evidence and the facts and circumstances of the case, there cannot be any escape from the conclusion, that the WILL was void for want of consent of the other heir as the WILL was in favour of only one heir and also beyond 1/3rd of the testators estate. Secondly, the genuineness of the WILL has also not been proved inasmuch as, the documents and evidence of the plaintiff herself indicated that the testator changed his mind after the execution of the WILL, and thus impliedly revoked the WELL. 16. In any view of the matter, when the alleged WILL in the instant case was invalid and void for want of consent of the other heir and also for being in respect of beyond 1/3rd of the estate of the testator, the learned trial Court rightly refused to grant probate. The appeal therefore is devoid of merit and deserves to be dismissed. Accordingly the appeal is dismissed. No cost. Send down the LCR.