JUDGMENT :

Dipak Misra, J. - Soundness of the orders passed by the Consolidation authorities under the provisions of Orissa Consolidation of Holdings and prevention of Fragmentation of Land Act(in short, 'the Act') by Annexures 3,4 and 5 is called in question in the present writ application under Article 226 and 227 of the Constitution by the petitioner.

After stating pleadings and contentions of counsel for both sides, it is held :

5. From the analysis of the rival contentions it becomes beamingly clear that the sole controversy rests on the issue whether the order of settlement passed under the OEA Act would enure to the benefit of others if parties are governed by Mohammedan Law.

6. Before we go to the different aspects of Mohammedan Law and the extension of benefit to a co-sharer we would like to ascertain whether there had been partition or the parties were in ' jointness. The Consolidation Officer in his order has observed as follows :

"Opposite party Karim Khan states that the property is joint and as per their mutual arrangement they are in possession in the field separately.

This being the admission of Karim Khan, it can be concluded that they are in jointness. This aspect is also not disputed by Karim Khan at any point of time. A contention was raised faintly by Mr. A.K. Mohapatra that when the property was gifted in the year 1949 Abida Khatun became the exclusive owner, but when she did not file an application under Sections 6 and 7 of the OEA Act she is deprived to get the benefits. It has been highlighted by him that because of the execution of the deed of gift she acquired an independent title and that cannot be regarded as a joint one .with her brother As we find from the fact-situation, despite the existence of the deed of gift the. brother and sister enjoyed the property as co owners in jointness. It is also to be taken note, of that without the gift deed, Abeda Khatun would have also got the said allotted share as the same was lawfully due to her.

7. Now we shalI proceed to deal with the inter se status between the brother and sister qua their ancestral property In this regard we may refer to the concept and mode of succession under the Mohammedan Law. The relevant portions finding place ' in Chapter V under the heading Succession and Administration of Mulla's Principle of Mohammedan Law are produced hereunder :

"39. Administration of the estate of a deceased Mohammedan. The estate of a deceased Mohammedan is to be applied successively in payment of (1) his funeral expenses and death-bed charges; (2) expenses of obtaining probate, letters of administration or succession certificate; (3) wages due, for service rendered to the deceased within three months next preceding his death by any labour, artisan or domestic servant; (4) other debts of the deceased according to their respective priorities (if any); and (5) legacies not exceeding one-third of what remains after all the the above payments have been made.

41. Devolution of inheritance.-Subject to the provisions of Sections 39 and 40, the whole estate of a deceased Mohammedan if. he has died intestate, or so much of it as has not been disposed of by will, if he has left a will (s. 118),. devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the -deceased. The heirs succeed to the estate as tenants-in-common in specific shares.

44. Distribution of estate-Since the estate devolves on the heirs at the moment of the death of the deceased, they are at liberty to devide it at any time after the death of the deceased. The distribution is not liable to be suspended until payment of the debts. 47. Alienation by one of several heirs for payment of debts.- One of several heirs of the deceased Mohammedan, though he may be in possession of the whole estate of the deceased, has no power to "alienate the shares of his co-heirs, not even for the purpose of discharging the debts of the deceased. If he sells or mor