Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1694 (KER)

M. BASHEER RAWTHER (DIED) v. SALMA AMMAL (DIED)

2024-12-20

K.BABU

body2024
JUDGMENT : K. BABU, J. 1. The Regular Second Appeal is directed against the judgment and decree passed by the Additional District Court, Mavellikkara in A.S. No. 138 of 1998. 2. The plaintiff is the appellant. Respondents 1 and 2 are the defendants. 3. Sri. Basheer Rawther, the original plaintiff, instituted O.S. No. 260 of 1994 before the Subordinate Judge’s Court, Mavellikkara, seeking partition of the plaint schedule property, which is 32 cents of land situated in Re-survey No. 436/3 of Choonakara village and a building therein. The Trial Court decreed the suit allowing partition of the plaint schedule property. The First Appellate Court reversed the judgment and decree passed by the Trial Court. 4. The late Sri. Basheer Rawther instituted the original suit seeking partition and allotment of 7/16th share in the plaint schedule property. The property originally belonged to Sri. Mytheen Picha Rawather, the late father of Sri. Basheer Rawther. 5. The plaintiff is the son born in the wedlock between Sri. Mytheen Picha Rawather and his first wife. Defendants 1 and 2, Salma Ammal and Sri. Nazar are the second wife and son, respectively, of Sri. Mytheen Picha Rawather. The plaintiff pleaded the following: 6. The plaint property originally belonged to Sri. Mytheen Picha Rawather. He died on 01.02.1978. The plaintiff and defendants are the legal heirs of late Sri. Mytheen Picha Rawather. On the demise of Sri. Mytheen Picha Rawather, the plaint schedule property devolved upon the plaintiff and the defendants, and they are the joint owners of the property. The plaintiff was residing on a different property even prior to the demise of Sri. Mytheen Picha Rawather and the defendants were residing with Sri. Mytheen Picha Rawather in the plaint schedule property. The plaintiff requested partition of the plaint property, but the defendants did not accede to the said request. The plaintiff is entitled to a 7/16th share over the property. The defendants pleaded the following: 7. On 28.12.1965 Sri. Mytheen Picha Rawather had executed a registered Will. As per the said Will the plaint schedule property was bequeathed to defendant No. 2. Immediately after the death of Sri. The plaintiff is entitled to a 7/16th share over the property. The defendants pleaded the following: 7. On 28.12.1965 Sri. Mytheen Picha Rawather had executed a registered Will. As per the said Will the plaint schedule property was bequeathed to defendant No. 2. Immediately after the death of Sri. Mytheen Picha Rawather, the plaintiff and the defendants sat together, and in the discussion which ensued, the plaintiff and the defendants expressly consented to the bequest with respect to their share and consented to mutation in the name of defendant No. 2 and thereby defendant No. 2 effected mutation in respect of the property and paid land tax to the same. The plaintiff was educated by his father, who had managed to secure him a job as a School Teacher and had also provided him with land and a building. The plaintiff is not a co-owner of the plaint schedule property, and he is not entitled to partition as prayed for. The plaintiff filed replication stating the following: 8. He has no knowledge about the Will, and he had never consented to the Will, and for mutation with respect to the property as alleged. The plaintiff after filing the written statement, had made enquiries in the village office and realised that the property had been mutated in the name of defendant No. 2. Defendant No. 2 would have stagemanaged to get the property mutated in his name by influencing or misleading the revenue authorities. Evidence 9. The plaintiff gave evidence as PW-1. Exts.A1 and A2 were marked on the side of the plaintiff. Defendants No. 1 and 2 were examined as DWs. 1 and 2, respectively. The Will dated 28.12.1965 was marked as Ext.B1. Exts.B2 to B4 series were also marked on the side of the defendants. 10. The Trial Court, as per judgment dated 27.03.1998, decreed the suit and passed a preliminary decree. The Trial Court recorded the following findings in the judgment: (a) The burden of proving that the plaintiff had consented to the Will is on the defendants. (b) There is no document to prove the express consent of the plaintiff to the said bequest. (c) Silence is not consent as required by law. (d) Even if the plaintiff had knowledge of the Will, it cannot be inferred that he had consented to it. (b) There is no document to prove the express consent of the plaintiff to the said bequest. (c) Silence is not consent as required by law. (d) Even if the plaintiff had knowledge of the Will, it cannot be inferred that he had consented to it. (e) The defendants failed to lead the best evidence to prove their case that the plaintiff had knowledge about the Will. (f) Implied consent cannot be inferred from inaction in not objecting to the mutation alleged to have been carried out in favour of defendant No. 2 and inaction in not interfering with the construction work alleged to have been carried out. (g) Inaction in not seeking partition does not confer exclusive right on defendant No. 2. (h) Knowledge of the re-survey number of the plaint schedule property does not establish consent to the Will. 11. As per the judgment dated 26.06.2010, the First Appellate Court reversed the Trial Court judgment based on the following findings: (a) As there is evidence to show that the plaintiff had knowledge of the disposition, there is passive acquiescence on his part, and therefore, consent by him to the Will could be presumed. (b) The alleged inaction of the plaintiff in not objecting to mutation and the construction of the compound wall would lead to the inference that the plaintiff consented to the disposition. (c) The case of the plaintiff that he came to know about the re-survey number of the plaint schedule property after enquiring from the village office is not believable. (d) The plaintiff filed the suit on 08.07.1994 after 16 years, and the delay in preferring the Suit would lead to the presumption that he consented to the bequest. (e) With effect from 22.03.1984, the defendants have been in the possession and enjoyment of the property as their own, on the strength of Ext.B1 Will excluding the plaintiff as a sharer. It does not stand to reason that the plaintiff did not make any enquiry regarding the exclusive possession and enjoyment of the property. (f) The plaintiff has not objected to the construction carried out in the property by defendant No. 2. 12. This Court reformulated the substantial questions of law as follows: (i) Whether consent by the plaintiff to the disposition contemplated by Ext.B1 Will can be inferred/presumed from mere silence or inaction on his part. (f) The plaintiff has not objected to the construction carried out in the property by defendant No. 2. 12. This Court reformulated the substantial questions of law as follows: (i) Whether consent by the plaintiff to the disposition contemplated by Ext.B1 Will can be inferred/presumed from mere silence or inaction on his part. (ii) Whether implied consent to the dispositions in Ext.B1 Will could be inferred from the alleged inaction/passive acquiescence/silence to acts such as mutation, which are not capable of inducing an apprehension in the mind of the Plaintiff that his title as a co-owner of the property is at the risk of being extinguished. (iii) Whether the first appellate Court has transgressed its jurisdiction in inferring consent of the Plaintiff to Ext.B1 Will from facts extraneous to the pleadings. (iv) Whether the first appellate Court has committed material illegality and irregularity in imputing knowledge of Will and consent of the plaintiff by misconstruing the evidence on record. (v) Has the first appellate court drawn necessary inferences and presumptions based on the pleadings and evidence? 13. I have heard Sri. M.K. Sreegesh, the learned counsel appearing for the appellant/ plaintiff and Sri. Vinod Bhat, the learned counsel appearing for the respondents/ defendants. Submissions 14. The learned counsel for the appellant/plaintiff made the following submissions: (a) Implied consent cannot be inferred from mere inaction or lack of objection and can be inferred only from affirmative acts. (b) ‘Consent’ which amounts to deprivation or extinguishment of proprietary tile over the property, cannot be inferred from inaction, silence or passive acquiescence. (c) The necessity of the plaintiff to institute an action emerges only when the defendants commit such acts that, by law, enable him to assert his exclusive right over the property, having the effect of extinguishing or threatening the proprietary title of the plaintiff. 15. The learned counsel for the respondents/defendants made the following submissions: (a) Delay in the institution of suit improbablises the case of the plaintiff regarding his lack of knowledge regarding the Will. The conduct of the plaintiff, including the suppression of the Will and the knowledge regarding the mutation, affects the credibility of the plaintiff as a witness. (b) The plaintiff is inconsistent in his stand before the court regarding the knowledge of mutation with respect to the property. The conduct of the plaintiff, including the suppression of the Will and the knowledge regarding the mutation, affects the credibility of the plaintiff as a witness. (b) The plaintiff is inconsistent in his stand before the court regarding the knowledge of mutation with respect to the property. (c) The legal effect of the mutation is not the relevant aspect, but the fact that defendant No. 2 effected mutation would draw the inference of consent. The circumstances like actual knowledge of Ext.B1 Will discernible from the many years of mutation in respect of the property in the name of defendant No. 2, the plaintiff’s knowledge regarding the mutation before the institution of the Suit together with the suppression of such knowledge before the proceedings in the court give rise to implied consent to the bequest by the plaintiff. Consideration 16. Under the Mohammedan Law, the bequest to an heir is not valid without the consent of the other heirs. In Chapter IX of the Principles of Mahomedan Law by Mulla (22nd Edition), it is stated that every Mohammedan of sound mind and not a minor may dispose of his property by Will. A Will may be made either by verbally or by in writing and consent of the heirs is necessary. Section 117 states 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. A bequest to an heir, either in whole or in part, is invalid unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. 17. The policy of the law is to prevent a testator from interfering by Will with the course of the devolution of property according to law among his heirs. 18. The learned counsel for the plaintiff/appellant submitted that inaction/silence cannot be the foundation of implied consent. It is submitted that implied consent cannot be inferred from mere inaction or lack of objection and can be inferred only from affirmative acts. The learned counsel submitted that implied consent can be inferred from acts which tend to prove affirmative acceptance of disposition and not from the alleged inaction. It is submitted that implied consent cannot be inferred from mere inaction or lack of objection and can be inferred only from affirmative acts. The learned counsel submitted that implied consent can be inferred from acts which tend to prove affirmative acceptance of disposition and not from the alleged inaction. The learned counsel relied on Narunnisa v. Shek Abdul Hamida, AIR 1987 Kant 222, Naziruddin v. Hajirambee, 2004 (1) KLT 896 , Sajathi Bi v. Fathima Bi, AIR 2002 Mad 484 and John Chandy and Co. v. Jobs P. Thomas, 2002 (5) SCC 90 to support his contention. 19. The learned counsel for the respondents submitted that express consent is not the law and implied consent is sufficient, which can be inferred from the conduct of the parties. 20. In Narunnisa v. Shek Abdul Hamida, AIR 1987 Karnataka 222, the Karnataka High Court held that assuming that express consent is not the requirement of law, nevertheless, the implied consent can be inferred only by some act or dealings in respect of the property, which is sought to be bequeathed. The Karnataka High Court further held that to defeat the legal right on the sole ground that a party remained absent cannot be countenanced. The Court was considering a case where an illiterate pardanashin lady remained absent from the proceedings for a long period. The Court held that the absence in the proceedings cannot be treated as innocent and attributed to her knowledge. The Court further held that unless strong circumstances exist and conclusion becomes inevitable, consent cannot be implied. 21. A Single Bench of this Court in Adbul Kadir v. Hammdamma, 1988 (2) KLT 643 held that consent need not be express and it can be inferred from circumstances and conduct also. The Court held that consent during the lifetime of the testator with knowledge of the bequest coupled with long silence after the death of the testator without claiming as heir must lead to the presumption of consent. Relying on the affirmative acceptance of legacies by some of the legal heirs under the Will coupled with the silence of the plaintiff for 15 years, the Court held that it is implied consent. 22. A Division Bench of this Court in Naziruddin v. Hajirambee, 2004 (1) KLT 896 laid down that inaction or silence cannot be the basis of implied consent. 22. A Division Bench of this Court in Naziruddin v. Hajirambee, 2004 (1) KLT 896 laid down that inaction or silence cannot be the basis of implied consent. In Sajathi Bi v. Fathima Bi, AIR 2002 Madras 484, the Madras High Court held that implied consent can be inferred only by some act or dealings in respect of the property which is sought to be bequeathed. In John Chandy and Co. v. Jobs P. Thomas, 2002 (5) SCC 90 , the Supreme Court considered the question of implied consent in the background of Kerala Buildings (Lease And Rent Control) Act 1965. The issue considered was whether the acceptance of rent by the landlord from the sub-tenants and inaction on the part of the landlord in not raising objection for 32 years against the sub-tenancy are factors from which implied consent could be inferred. 23. The learned counsel for the appellant submitted that propositions laid down by the Supreme Court in the context of the Rent Control Act are equally applicable and relevant while considering the expression ‘consent’ under the Mohammedan Law. 24. While answering the question, the Supreme Court observed thus: “...........10. The consent of the landlord should be in a positive way, clear cut and without ambiguity since otherwise right to sub-let is only to be conferred on the tenant by the landlord in the lease itself. It can reasonably be expected that a right which is otherwise to be conferred by having such a condition in the lease itself, consent, in absence thereof, preferably be in writing and in case it is not so, it is to be clear cut without any ambiguity or shadow of doubt. The conduct of the landlord which has been mainly taken into account on the point of implied consent is his inaction for a long time despite the knowledge of the fact of sub- letting by the tenant to other persons. The period of 32 years as indicated by the appellate authority is incorrect as discussed earlier. Nonetheless it can be said that there has been inaction on the part of the landlord for some years if not 32 years. But inaction in every case does not necessarily lead to an inference of implied consent or acquiescence. In this connection we may refer to Words and Phrases Legally Defined Vol.1 Third Ed. Nonetheless it can be said that there has been inaction on the part of the landlord for some years if not 32 years. But inaction in every case does not necessarily lead to an inference of implied consent or acquiescence. In this connection we may refer to Words and Phrases Legally Defined Vol.1 Third Ed. Page 27 where we may first see what has been said about Acquiescence. It is as follows: “Mere inactivity on the part of a defendant is not to be construed as acquiescence in delay by the plaintiff. “sleeping dogs, in the form of sleeping plaintiffs, need not be aroused by defendants from their slumbers” (per Roskill L.J. in Compagnie Francaise de Television vs. Thorn Consumer Electronics Ltd. (1978) RCP 735 at 739; Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation, (1979) 3 All ER 194 at 198, per Donaldson J.” It may also answer the observation of the appellate court that the landlord by inaction is to be taken to have waived his right to take any action against the tenant. 11. A distinction has also been drawn between ‘Acquiescence’ and ‘Consent’. It is in relation to a dispute between a landlord and a tenant and we again refer to Words and Phrases Legally Defined Vol.1 Third Ed. Page 314. “(The Landlord and Tenant Act 1954, S.23(4) is concerned with a situation where an immediate landlord or his predecessor in title has ‘consented’ to a breach of covenant, or the immediate landlord has acquiesced in it.) I agree.....that in the context of Section 23(4)of the Act, whatever consent or acquiescence may mean in different contexts, in that context ‘consent’ is put in plain antithesis to ‘acquiescence’ and that, therefore, if something falls within the description ‘acquiescence’, it is not consent. The difference which is pointed out between the two in this context is that ‘consent’ involves some affirmative acceptance, not merely a standing by and absence of objection. The affirmative acceptance may be in wiring, which is the clearest obviously; it may be oral; it may conceivably even be by conduct, such as nodding the head in a specific way in response to an express request for consent. But it must be something more than merely standing by and not objecting. Bell v. Alfred Franks & Bartlett Co. Ltd. (1980) 1 All ER 356 at 362. But it must be something more than merely standing by and not objecting. Bell v. Alfred Franks & Bartlett Co. Ltd. (1980) 1 All ER 356 at 362. C.A. per Megaw L.J.” The above observations though no doubt made in reference to particular provision, yet they throw some light on the question of implied consent that there has to be something more than mere inaction or lack of initiative on the part of the landlord. In context with the above, we find our view reinforced on the meaning and import of the word ‘consent’ as used in Cl.(i), sub-section (4) of Section 11 of the Act when read in the background of the word ‘confer’ in the latter part it will only mean that consent has to be with some positive action on the part of the landlord so that the tenant can be said to have had the authority to sub-lease his lease rights. Mere silence may not be enough. 25. In Abdul Kadher v. Fathima, 1993 (2) KLT 1025 , a Single Bench of this Court held that the consent need not be expressed and the heirs whose rights are affected by the Will can definitely consent to the same either expressly or impliedly. The Court further held that it may be signified by the conduct of the heirs showing their tacit approval of the Will. 26. In Ghisalal and Others v. Dhapubai (Dead) by LRs. and Others, MANU/SC/0037/2011 : AIR 2011 SC 644 while dealing with the term ‘consent’ used in the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956, the Supreme Court observed that it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. The Supreme Court held that the wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. 27. The precedents mentioned above lead me to the following conclusions:-Neither inaction nor silence can constitute the basis of implied consent. There has to be something more than mere inaction or lack of initiative on the part of the legal heir. 28. 27. The precedents mentioned above lead me to the following conclusions:-Neither inaction nor silence can constitute the basis of implied consent. There has to be something more than mere inaction or lack of initiative on the part of the legal heir. 28. The learned counsel for the plaintiff submitted that as the consent to a Will deprives the heir of a right that is otherwise conferred on him by operation of law, the burden of proving consent is on the party claiming under the Will. The learned counsel further submitted that as the consent contemplated by law is consent to deprivation or extinguishment of his proprietary title over the property, implied consent could be presumed not from inaction or silence but from some affirmative acts. 29. The First Appellate Court has inferred implied consent to the bequest by the plaintiff based on the following circumstances, His inaction: (a) to institute a suit after the demise of the testator. (b) to object mutation in favour of defendant No. 2. (c) to object to construction carried out by defendant No. 2. 30. The learned counsel submitted that objecting to mutation in favour of defendant No. 2 or construction carried out by him in the plaint property are not acts which are considered in law as acts capable of triggering an apprehension in the mind of the co-owner that his title to the property as a co-owner is at the risk of being extinguished. Therefore, implied consent cannot be inferred from such immaterial acts, which do not have any bearing on the title of the co-owner. The learned counsel further submitted that the necessity for the plaintiff to institute an action arises only when the defendant commits such acts which in law enables defendant No. 2 to assert his exclusive right over the property, thereby having the effect of extinguishing or threatening to extinguish the proprietary title over the property. Mutation allegedly effected by defendant No. 2 in his favour is not susceptible of being construed as either conferring exclusive right over the property or as an act extinguishing the proprietary title of the plaintiff over the plaint property. The submission of the learned counsel for the plaintiff is that those acts cannot be the basis for inferring implied consent. 31. The submission of the learned counsel for the plaintiff is that those acts cannot be the basis for inferring implied consent. 31. The learned counsel for the defendants submitted that what is relevant in the present case is not the legal effect of mutation but the mental element of the plaintiff as to whether there was consent on his part to the bequest. The learned counsel further submitted that the knowledge regarding mutation of the property in favour of defendant No. 2, the inordinate delay in instituting the suit and the suppression of the knowledge regarding the mutation and the execution of the Will are sufficient to persuade the court to infer implied consent to the bequest. 32. To challenge the finding of fact by the First Appellate Court on the knowledge regarding mutation, the learned counsel for the plaintiff relied on the admission made by defendant No. 2 that when the property was sought to be mutated in his name, the plaintiff was not told about the same and no application was submitted. The learned counsel further relied on the evidence of the plaintiff as PW-1 that he came to know that defendant No. 2’s name was entered in Re-survey proceedings only when he enquired in the village office after filing the written statement and that on enquiry, he could realise that no document had been produced before the Revenue authorities at the time of effecting mutation. 33. The learned counsel for the defendants submitted that the stand of the plaintiff regarding the knowledge of mutation proceedings is inconsistent in the court. The learned counsel submitted that the averment of the plaintiff that no enquiry was made regarding the plaint schedule property, mutation records and payment of building tax before the filing of the written statement is belied in the cross-examination and therefore, the First Appellate Court came to the conclusion that if as a matter of fact, he had come to know about the Re-survey number of the plaint schedule property from the village office, he would have come to know about the fact that mutation in respect of the property was effected in favour of defendant No. 2 even before the institution of the suit. 34. The oral evidence of DWs. 34. The oral evidence of DWs. 1 and 2 and PW-1 leads to the conclusion that the plaintiff was not told about mutation, there was no application for mutation, and no documents were placed before the Revenue authorities for effecting mutation. This leads to the conclusion that the finding recorded by the First Appellate Court that since the plaintiff came to know about the Re-survey proceedings from the village office, knowledge of Will could be imputed to him, is unsustainable, and it is affected by the vice of perversity. Necessary conclusions are inferred from the evidence of the relevant witnesses. The knowledge of the Re-survey number does not necessarily lead to the knowledge that the property had been mutated in the name of defendant No. 2 as per Ext.B1 Will. 35. The further submission of the learned counsel for the plaintiff is that the plaintiff had no reason to apprehend that the construction allegedly made by defendant No. 2 would lead to the extinguishment of his title over the property. The learned counsel further submitted that the finding of the First Appellate Court based on the construction allegedly made by defendant No. 2 was by ignoring the fact that there was no pleading to that effect. The defendants have not pleaded regarding the construction allegedly made. While giving evidence, DW2 admitted that the construction was made after filing of the suit. The First Appellate Court lost sight of this admission and recorded the finding that plaintiff had not stated anything on the construction in his replication. This finding of the First Appellate Court can only be treated as perverse. On the question of delay in the institution of the suit from the angle of inaction, the learned counsel for the plaintiff submitted that the plaintiff had no case that the defendants denied the request for partition and further, the evidence of DW1 showed that there was no rift between the parties. It is submitted that the right to sue accrues to the plaintiff only when his right to seek separate allotment of share is refused or the plaintiff conceives that the defendants set up title in exclusion of the plaintiff. I find force in the submission of the learned counsel for the plaintiff. 36. It is submitted that the right to sue accrues to the plaintiff only when his right to seek separate allotment of share is refused or the plaintiff conceives that the defendants set up title in exclusion of the plaintiff. I find force in the submission of the learned counsel for the plaintiff. 36. The learned counsel for the plaintiff further submitted that the defendants failed to lead the best evidence to establish the alleged knowledge about the Will by the plaintiff. Defendant No. 2, while giving evidence as DW-2, stated that his relatives and family members had knowledge about the Will. DW-1 deposed that the son of one of the witnesses who had witnessed the act of the plaintiff consenting to the Will is alive, but the defendants did not care to lead any evidence in support of this contention. The defendants also set up a case that they had surrendered a portion of the property to widen the lane. But they did not provide any evidence of such surrender. The learned counsel relied on Gopal Krishnaji Ketkar v. Mohammed Haji Latif and Others, AIR 1968 SC 1418 to contend that an adverse inference is to be drawn against a party in the position of best evidence which throws light on the issue in controversy, withholding it. On the case set up by the defendants that plaintiff and defendants sat together and discussed the future, and in that discussion, the plaintiff as well as the defendants expressly consented to the bequest, the submission of the learned counsel for the plaintiff is that while giving evidence defendant No. 2 failed to lead evidence as to when the plaintiff had consented to the alleged Will. 37. The First Appellate Court has inferred implied consent to the bequest by the plaintiff essentially based on the following: (a) Inaction to institute suit after the demise of the testator. (b) The failure of the plaintiff to object mutation effected in favour of defendant No. 2. (c) Inaction on the part of the plaintiff to object to the construction carried out by defendant No. 2. 38. The act of effecting mutation in favour of defendant No. 2 and the construction carried out by him, a co-owner, are not acts which would reasonably cause apprehension in the mind of the plaintiff. (c) Inaction on the part of the plaintiff to object to the construction carried out by defendant No. 2. 38. The act of effecting mutation in favour of defendant No. 2 and the construction carried out by him, a co-owner, are not acts which would reasonably cause apprehension in the mind of the plaintiff. Such acts would not deprive and extinguish his proprietary title over the property or cast any cloud on his title as a co-owner. The evidence available would not lead to the conclusion that plaintiff has any reason to institute a suit for partition. No acts proved by the defendants are susceptible of legally being construed as setting up title by the defendants over the property in exclusion of the plaintiff. There were no acts which would persuade the plaintiff to infer that his right over the property is likely to be extinguished. As concluded above, mere inaction/passive acquiescence/silence by the plaintiff is not sufficient to infer implied consent. To infer implied consent, defendants have to establish that there was inaction/passive acquiescence/silence by the plaintiff to any acts done by the defendants which would cause reasonable apprehension in the mind of the plaintiff that his right as a co-owner of the property is infringed. Mere inaction, silence or acquiescence in the absence of any such acts cannot be the legal basis for inferring presumption of the implied consent to Ext.B1 Will. The findings of the First Appellate Court, to the contrary, are affected by the vice of perversity. The First Appellate Court has failed to draw necessary inferences and presumptions based on the pleadings and evidence. The substantial questions of law are answered in favour of the plaintiff. The judgment and decree passed by the Additional District Court, Mavellikkara in A.S. No. 138 of 1998 stand set aside. The judgment and decree passed by the Subordinate Judge’s Court, Mavelikkara (trial court) are restored. 39. The Regular Second Appeal is allowed as above.