MALIKA ROUT Vs. GANI KHAN

JUDGEMENT

(1.) This Second Appeal is against the judgment and decree dated 2.12.1995 and 16.12.1995, respectively, passed by the learned District Judge, Dhenkanal-Angul, Dhenkanal in Title Appeal No.52 of 1991 reversing the judgment and decree dated 4.10.1991 and 4.11.1991 passed by the learned Subordinate Judge, Talcher (now Civil Judge (Senior Division) in T.M.S. No.6 of 1986.

(2.) The plaint averment in brief is that one Mithan Bibi died in 1957 leaving her brother Fatula Khan as her sole survivor to succeed to all her properties. Her sister Najo had predeceased her. Fatula Khan died in 1970. He had three sons, namely, Gafur Khan (Plaintiff), Majid Khan (D.8) and late Md. Khan. Since Md. Khan predeceased Fatula leaving behind two daughters D.10 and D.11, they fail to get any share. Md. Khan had another daughter Tairun but she had died during life time of Md. Khan. So, Sk. Nizamuddin and Sk. Riazuddin (D.12 and D.13) who claim to be sons of Tairun do not get any share in the property.

(3.) Learned trial Court held that Majid and Gafur are entitled to share in the property of Mithan. D.12 and D.13 are also entitled to the estate of Fatula to the extent possible under the Mohammedan Law. With regard to the mortgage the learned trial Court held that in terms of the mortgage deed Gouranga became the owner of the mortgaged land after expiry of 12 years. So, the mortgage cannot be redeemed. Gouranga has also perfected his title over the suit land by way of adverse possession. Therefore, the sale deeds executed by Sushila in favour of D.5, 6, 7 and 9 convey title to her vendees. The learned trial Court has further held that provisions of Section 17 of the Orissa Money Lenders' Act, 1939 (OML Act) are not applicable to the case on hand in as much as the mortgage was made in 1924 whereas OML Act was enacted in 1939.