reported in Valashiyil Kunhi Avulla and others v. Eengayil Peetikayil Kunhi Avulla and others, A.I.R. 1964 Ker. 200 for deciding the dispute between the parties. In that case the properties of a Mohammedan 'M' were divided between his sons 'A', 'B', 'C', 'D', and 'E', 'D' and 'E' were allotted more shares than what they were entitled to. In that deed of partition it was mentioned that if any property of 'M' was omitted to be included in the said document for division, 'A', 'B' and 'C' alone will be entitled to divide the such properties between themselves and not 'D' and 'E' as they were already allotted more properties than what they were entitled to. For division of some other properties omitted to be considered at the time of partition, 'D' and 'E' filed a suit and the said suit was resisted relying on the clause in the partition deed wherein claim for omitted property was given only to 'A', 'B' and 'C' and not to 'D' and 'E' In that case it was held as follows: The bequest to A, B, C by M in respect of the aforesaid properties not having been consented to after his death by the other heirs, viz., D and E was not valid under Mohammedan Law. The relinquishment or the agreement to relinquish by the D and E being within the mischief of Sec. 23 of the Contract Act read with Sec. 6(a) of the Transfer of property Act was void and D and E were bound by them. As D and E had nothing to give nor to give up but only to take, they could not be said to have been parties to a family arrangement.
