Law: Civil Procedure Code (V of 1908)

Section: 100(2),33

  Civil Procedure Code (V of 1908), S. 100 (2) read with O. XLI, r. 33-Second appeal-Powers of appellate Court-Such power may be exercised in favour of all or any of the parties notwithstanding that such party has not filed any appeal or objection.   Apart from the provision of section 100(2), the appellate Court has ample powers under Order XLI, rule 33, Civil Procedure Code, to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.   Muhammadan Law - Will - (Shiah Law) - Testator not specifying individual shares of legatees (some heirs, some non-heirs) but bequeathing whole property collectively to all-Excluded heirs not consenting to such bequest - Will void in entirety - Rule of interpretation of documents-Author's intention to be gathered Bequest made to heirs and non-heirs without specifying their shares - Cannot be interpreted to mean that author's intention was that any legatee should get any share excluding others.   The present is a case of a composite will in favour of an heir and non-heirs of the whole of the property of the testator without the consent of the other heirs. The will has, therefore, to be struck down as void in -its entirety. The principle of the first-named legatee getting the property to the extent of one-third as his divisible share, applies to a case where a valid will is created in favour of more than one person and where if the disposition exceeds one-third, the respective shares of the different legatees are specified. In the present case, the bequest covers the whole of the property of the testator without any specification of shares. The principal thing in the interpretation of a document, including a will, is to gather the intention of the author. It could not possibly have been the intention of the testator in this case that under…