JUDGEMENT
V.V.VAZE -
(1.)Our story start in 1877 and no one can tell unless he has a peep into the womb of time, when it will end. This appeal concerns itself with partitioning of agricultural property in `Khoti village of Mouje Har kul Budruk in the Kankavli taluka of Kokan area. The land tenure system prevalent in this part of Konkan was akin to the Malguzari system of central area unlike the Rayatwari system of rest of Maharashtra. A number of muslim families were allotted Khoti village and it is a common ground that so far as inheritance and succession to Khoti property was concerned, the Patels of Mouje Harkul Budruk (Harkul BK.) whether Hindus or Muslims were governed by Hindu Law.
(2.)Certain parcels of land numbering about 70 described in the schedule to the plaint constituted the holdings of the village Harkul BK. All these parcels of land though large in number hardly extended over 15 acres and 20 gunthas and vested in one Ismalisha as the Patel of that village whose family genealegy was as under :---
Ismailsha | ------------------------------------------------------ | | Imamsha Latifsha | Ibrahimsha = Jainabi (D166) (D165) | ----------------------------------------------------------- | | | Abdulsha A. Latifsha Hdayyatullah (D6) (D7) D8) At this stage, it will be apposite to state the geneology of another muslim family of which Mahamadsha was the prepositus. Mahamadsha | ------------------------------------------------------------------ | | | Badesha (1/3) Rahomadsha (1/3) Husseinsha (1/3) (Saledeed | D/-5.3.1911) -------------------------- = Fatima (D2) died | | | | Bapusha Mahamedsha Mahmudsha Raj Ahmed =Halima (P1) (P2) (D1) (D5) | -------------------------------------- | | Rahimansha A. Ganisha (D3) (D4)
(3.)On 5th September, 1977 Ismailsha had executed a mortgage-deed in favour of Mahamadsha for a consideration of Rs. 600/- in respect of the suit lands. The family of Ismailsha could not repay the loan and some 34 years after execution of the mortgage, the mortgagee decided to purchase the equity of redemption. A document styled as sale-deed for a consideration of Rs. 1000/- was executed on 5-3-1911. By this period the original mortgager Ismailsha and one of his son Latifsha were dead leaving another son Imamsha and one widow of Latifsha i.e. Jainabi, Ibrahimsha and Jainabi appeared as Vendors in the 1911 sale-deed which has been executed in favour of Badesha, one of the three sons of the original mortgage Mahamadsha. The sale-deed makes a reference to the mortgage dated 5-9-1977 and other dues under a decree of the Devgad Court totalling to Rs. 1000/- and recites that "the mortgaged property was in the possession of the mortgagee which was being sold to Badesha."
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