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. 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 mortgages any property in his possession forming part of the estate of the deceased, though it may be for payment of the debts of the deceased. 49. If he sells or mortgages any property in his possession forming part of the estate of the deceased, though it may be for payment of the debts of the deceased. 49. Alienation by co-sharer before partition.-Where one of two or more co-sharers mortgages his undivided share in some of the properties held jointly by them,the mortgagee takes the security subject to the right of the other co-sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severally. If the mortgage, therefore. Is followed by a partition, and the mortgaged properties are allotted to the other co-sharers, they take those properties in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share. 52. Birth-right not recognised.-The right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor. 57 Joint family and joint family business.-(1) When the members of a Mohammedan family live in commensality, they do not form a joint family in the sense in which that expression is used in the Hindu Law. Further, in the Mohammedan law. there is not, as in the Hindu Law. any presumption that the acquisitions of the several members of a family: living and messing together are for the benefit of the family. But if 'during the continuance of the family, and it is proved that they are possessed by all the members jointly, the presumption Is 'that they are the properties of the family, and not the separate 'properties of the member in whose name they Stand." We may state that the learned counsel for both insides have referred to these sections and have interpreted to substantiate their respective contentions Mr. A.K. Mohapatra' has laid emphasis on Sections 51. 52 and 57'to bring home the point that concept of right at birth and jointness are not recognised under the Mohammedan Law. Per contra Mr. R.K. Mohapatra, learned Senior (Counsel for the petitioner has referred to all these sections to drive home the concept that existence of jointness or for that matter coparcenary is not the sine qua non to get the benefit of the settlement under the OEA Act. He has highligted the terms used in the aforesaid sections. Per contra Mr. R.K. Mohapatra, learned Senior (Counsel for the petitioner has referred to all these sections to drive home the concept that existence of jointness or for that matter coparcenary is not the sine qua non to get the benefit of the settlement under the OEA Act. He has highligted the terms used in the aforesaid sections. Co-heir' and 'co-sharer' are the terms which are emphasised to highlight that the, specific sharers are allocable. We accept the submission of the learned counsel for the petitioner that there is concept of co-sharer and co-heir and allotment of specific snare under the ' Mohammedan Law. 8. We may now proceed to refer, to the decision In the field. In the case of Shukrulla and Others Vs. Mt. Zuhra Bibi and Others, the Allahabad High Court held that the concept of, Mohammedan Joint family cannot be treated as a legal unit having a corporate existence and as such possessing property But the Court also expressed the view realating to co-sharers in the following manner : "Where male members of a family live in union so as to have jointness in mess business: and property there can be little difficulty in tracing their relations inter se to an implied agreement which clothes each with a representative capacity in reference to ' his co-sharers. Each must be deemed to be acting not only for himself but for all his dealings with regard to Joint property and business. Accordingly any acquisition made by any one member should be considered to have been- made by all through the one who actually made it." 9.In another decision in the cash of Peer Mohideen Rowther v. Asis Bivi and Ors. reported in AIR 1934 Mad 666 the Madras High Court held as follows : "Though the relationship of one co-owner towards another is not of a fiduciary character, still when one co-owner deals with his co-owner's share and assumes responsibility in regard to it and further acts as guardian of the minor son of the other co-owner on his death his conduct creates such fiduciary relationship as to be treated as a trustee for the other co-owner." 10. In the case of P. Lakshmi Reddy Vs. L. Lakshmi Reddy, the apex Court laid down as follows : "The possession of one co-heir is considered, in law, as possession of all the co-heirs. In the case of P. Lakshmi Reddy Vs. L. Lakshmi Reddy, the apex Court laid down as follows : "The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title." Mr. R.K. Mohapatra has also drawn our attention to the case of Mt. Haliman and Others Vs. Md. Manir and Others. The said Court held as under : "In the case of, tenancy in-common each' co-owner has got interest in each item of -the property held as tehancy in common, and he is entitled -to claim partition in respect of even one of -these items without seeking for partition of the other items. In the case of Mohammedans the co-heirs are only tenants-in-common. and there is no joint family in the Hindu Law sense of the term." 11. Mr. A.K. Mohapatra, learned counsel for the opposite parties has drawn our attention to the decision in the case Maimoon Bivi and Anr. v. D.A Khajee Mohideen and Anr. AIR 1970 Mad 200 to indicate that when a Mohammedan dies intestate, his estate devolves on his heirs and they take the estate as tenants-in common in specific shares, but they are not co-owners. He has also referred to another decision rendered in the case of Smt. Munni Devi and Another Vs. State of U.P. and Others,,' We are afraid, the ratio of the aforesaid decisions 'is really not appllicable to the present case inasmuch as in that case there Was comparison of joint family under Hindu Law and the 'concept of co. owner in that light. 12. In the case of Akbar v. Sharma AIR 1969 J & K 121 while dealing with the concept, of co-sharer under Jammu and Kashmiir Right of Prior Purchase Act reference Was made to the general concept of co-sharer and noting that there was no definition under the Act the Court expressed thus "The term .co-sharer has not been defined in the aforesaid Act and its meaning has to be gathered from decided cases." In Mohini Mohan Saha Chowdhury and Others Vs. Meajan and Others, It has been observed: "A person who has got an undivided share in the holding as well-as a person who has become interested in a particular-area of the holding Is a co-sharer." Again in AIR 1947 Lah 184, it was held : "The word co-sharers signifies persons owning a share or shares in the whole of the property or properties by which another share of other shares ware the subject of sale. In other words the word 'co-sharer' denotes a person 'who holds an existing joint proprietary interest 'whether absolute or ; limited in an, undivided preropty." From the ratio of the aforesaid decisions it is luminously clear that interest in joint proprietary right connotes a co-shareship. Or close scrutiny of, the, terms, 'co-sharer of-, 'co-owner' and the sections which have been referred to above laying down the principles of succession in Mohammedan. Law it is plain as day that the concept of co-sharer or co-owner or co-proprietor is applicable to the shareholders in Mohammedan family. Irrefragably the brother, and the sister enjoying the property, jointly are co-sharers co-owners/co-proprietors. 13. Now we, shall, proceed to address ourselves whether a settlement made in favour of co-owner or a co-sharer would enure to the benefit of other co-shares; or owners even, if they have not joined as parties to the application filed for settlement. This Court In the case of Pranakrushna Pradhan v. Harekrushna Pradhan reported in 1971(2) CWR 843 and in the case of Banchhanidhi Panda v. Nini Dibya reported in 40(1974) CLT 564 has held that application by a co-sharer for settlement of land under Sections 6 and 7 of the Act would enure to the benefit of other co-sharers even though they have not joined in the application for settlement. Following the aforesaid decision against in the case of Dileswar Patel and Ors. v. Mst. Binodini Patel and Ors., 55 (1983) CLT 282 this Court held as follows: "The legal position is well-settled that if settlement is made on the application under Sec, 8-A of the Act filed by one of the Intermediaries, benefit thereof would accrue to the co-sharer& even though they have not joined in the application. v. Mst. Binodini Patel and Ors., 55 (1983) CLT 282 this Court held as follows: "The legal position is well-settled that if settlement is made on the application under Sec, 8-A of the Act filed by one of the Intermediaries, benefit thereof would accrue to the co-sharer& even though they have not joined in the application. In the case of Hemchandra Dansna v, Dolamani Dansana and others, a Division Bench of this Court held that even though one of the co-sharers is found to be in khas possession of the agricultural land on the date of vesting, such possession shall be deemed to be the possession of entire body of co-sharers and the land in possession of one of the co-sharers shall be deemed to be- settled not only with him, but with all the shareholders owning. the estate. This decision was followed in the case of pranakrushna Pradhan v. Harekrushna Pradhan, Srimati Gita. Mohanty and Anr., v. Gelhi Mani Bewa and Ors. and. Banchanidhi Panda and Anr. v. Nini Dibya and Ors. In view of this legal possession the settlement made by the Estate Abolition Collector on the application, of defendant No. 10 Dhaneswar must enure to the benefit of all the heirs of late Basudev The plaintiff cannot, therefore, claim exclusive title and possession over the suit lands. The language used in the decision is co-sharers.We have already held that in the instant case the brother and sister are the co-sharers and therefore it can be unequivocally concluded that the settlement in favour of Abdul Karim Khan (opposite party No. 4) would enure to the benefit of his sister Abeda Khatun (opposite party No. 5). 14. Mr. A.K. Mohapatra has also raised a contention that the writ application having been dismissed; against Samsuddin Khan the whole writ application has to abate and therefore, is beyond the scope of adjudication. As our foregoing analysis would indicate that the controversy relates to, entitlement of, Abeda in her father's property which was gifted by her brother in her favour. Clear as day, Samsuddin has no interest in the suit property. During the pendency of the litigation by the death of an unnecessary party the proceeding does not abate. As our foregoing analysis would indicate that the controversy relates to, entitlement of, Abeda in her father's property which was gifted by her brother in her favour. Clear as day, Samsuddin has no interest in the suit property. During the pendency of the litigation by the death of an unnecessary party the proceeding does not abate. It is also well-settled in law that when no relief is sought against a party, for the failure to substitute his legal heirs and legal representatives on his death the proceeding does not abate. In this regard, we may refer to the decisions in the cases of Mangal Singh and Ors. v. Smt. Rattno(dead)by her legal Representatives and Anr. AIR 1967 SC 1786 and Upper India Cable Co and Ors. v. Bal Kishan AIR 1984 SC 1381 . 15. The learned counsel for the opposite parties has supported the order of the revisional authority from another angle. His. submission is that settlement by the Estate Abolition Collector confers a new and independent right and that has to be respected by the consolidation authorities. To substantiate the said submission he has referred to the case of Mani Bewa and Ors. v. Bijay Kumari alias Kanakalata Dei and Anr. reported in 33 (1931) OJD 145. The ratio of the aforesaid case is not applicable to the present cace because in that case the Court held that the settlement by the Estate Abolition Collector confers a new and independent right and the sad settlement would not enure to the benefit of others on the sole ground that trie settlee was a trustee of others. In the said case the Court was not. discussing the right of co-sharer or co-owner or co-proprietor. 16. In view of our preceding analysis the orders passed by the consolidation authorities fay Annexures-3. 4 and 5 are liable to be quashed as far as they relate to the claim of opp. parties 4 and 5. All other ancillary findings except the aforesaid In Annaxure-3 are not disturbed. The petitioner being a purchaser from opp. party No. 5 is to be regarded as a valid title-holder and the consolidation authorities are directed to reflect the same in the land register. Resultantly, the writ application is allowed. No costs. P.C. Naik, J. 17. I agree. Final Result : Allowed