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Civil Revision No. 140 of 1975, decided on 28th June 1975.

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑----

----Ss. 10, 11 & 12 read with Transfer of Property Act (IV of 1882), S. 58‑Words "any part of such rents and profits" in S. 58, Transfer of Property Act‑Mortgagee in possession may not enjoy entire profits of land and may agree to appropriate any part of same‑Arrangement between parties that mortgagee to retain 9/10th and mortgagor to get 1/l0th of produce‑Payment of a fraction of produce of land to mortgagor‑Held, does not alter mortgage into tenancy.

Writ Petition No. 75 of 1973 not applicable.

Muhammad Karamat Ali Khan v. Ganeshi Lal and another A I R 1927 All. 552 ref.

D. M. Kamil for Petitioners.

Q. Muhammad Jamil for Respondents.

Date of hearing: 28tth June 1976.

This revision petition by Said Muhammad and others sons of Said Rehman of Chaghbat‑cum‑Kolaka, Ilaqa Agror, tehsil Mansehra, District Hazara, arises out of the following facts.

2. Respondent Muhammad Kabir and Mst. Noor Jehan had mortgaged the suit land with possession to Said Rehman by mutation No. 874 attested on 24‑3‑1945 for Rs. 5,000. Muhammad Kabir made an application before the Collector, Mansehra for redemption of the land under the West Pakistan Redemption and Restitution of Mortgaged Lands Act (No. XIX of 1964), (hereinafter referred to as the Act), on 9‑11‑1966 against the petitioners to whom Said Rehman has transferred the mortgagee rights vide mutation No. 1058 attested on 16‑8‑67. The minors in this application were represen ted by their father Said Rahman as guardian ad litem but at a subsequent stage he absented himself and the reader of the Court was made guardian ad litem of the respondents. This application was allowed in favour of Muhammad Kabir, respondent, in this petition, The order of the Collector was appealed against but it was dismissed. Said Rahman brought a suit on 17‑7‑68 against Muhammad Kabir and the petitioners for a declaration that he was the owner of the suit land and the entries in the revenue record showing the petitioners (his eons) as mortgagees on behalf of Muhammad Kabir respondent were wrong and that Muhammad Kabir mortgagor was not entitled to redeem the land on the basis of the wrong entries. The suit of Said Rahman was dismissed by Civil Judge, Mansehra on 12‑6‑1969 and his appeal against the dismissal of the suit also failed on 6‑4‑70. Another suit was then brought by the petitioners whereby they questioned the order of the Collector on the ground of fraud and collusion. This suit was dismissed on 26‑4‑71 and their appeal was also dismissed.

3. Mr. D. M. Kamil, learned counsel for the petitioners argued that the mortgage in favour of the petitioners was not a usufructuary mortgage within the meaning of S. 10 of the Act, and the view of the Courts below in this regard is not in accordance with law. Reliance is placed on Writ Petition No. 75 of 1973, which reads;‑

"Qazi Muhammad Jamil Advocate heard.

The learned Member, Board of Revenue, N.‑W. F. P. by his order dated 14‑3‑1973 upheld the order of the Additional Commissioner, Peshawar Division, Peshawar, dated 24‑12‑1971 and held that the mortgage in dispute does not fall within the definition of usufructuary mortgage. Both the member, board of revenue and the Additional Commissioner, Peshawar Division, Peshawar, had the lawful authority to pass the orders under section 11 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. This petition does not lie and is, therefore, dismissed in limine.

(Sd.) Shah Zaman Babar

(Sd.) Qaisar Khan

Section 12 of the Act reads:‑

"12. Power of Collector to declare and enforce orders in favour of mort gagor.--‑If the Collector finds that the application is in respect of mort gaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years, or is in respect of mortgaged land the term of the mortgage whereof has expired, he shall notwith standing anything contained in any other enactment for the tithe being in force or any contract or decree or order of any Court.‑

(a) order that the mortgage shall be extinguished without payment of the mortgage money on any part thereof;

(b) and (c) . . . .

The words "notwithstanding anything contained in any other enactment for the time being in force . . . order that the mortgage shall be extin guished without payment of the mortgage money or any part thereof; . . ." are important to note. Section 17 of the Act bars jurisdiction of ‑the Civil Court. The anchor sheet of the argument of the learned counsel is that as the mortgagee is shown liable to pay 1/10th of the produce, therefore, it is not a usufructuary mortgage within the meaning of section 10 :of the Act. 1n section 58 of the Transfer of Property Act "usufructuary mortgage" is defined as:--

"Where the mortgagor delivers possession expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage‑money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mort gage‑money, or in lieu of interest or partly in payment of the mortgage‑money the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee."

The words "or any part of such rents and profits" are important to note. It follows from it that a mortgagee in possession may not enjoy the entire profits of the land, and may agree to appropriate any part of it, as in this case the arrangement between the parties appears to have been that the mortgagee retains 9/10 and 1/10th of the produce payable to the mortgagor. As such the payment of a fraction of the produce of land to the mortgagor does not alter the character of mortgage into tenancy. In the N: W. F. P. Tenancy Act of 1950, 'tenant' means a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that other person, but it does not Include‑

(a) an inferior land owner, or

(b) a mortgagee of the rights of a land‑owner, or . . . . . "

The definition of 'tenant' runs counter to the argument of Mr. D. M. Khan Kamil and the petitioner cannot be regarded as a tenant within the perview of the above definition. The following in the definition militate against the interpretation put forward by the learned counsel:‑

"A person who holds land under another person." In the original mutation in favour of Said Rahman "Rehn‑Hag‑Kasht" has been mentioned for Rs. 5,000 and in the column of Lagan 1/10th of the produce payable to the mortgagor. The argument of the learned counsel proceeds on the basis that as the mortgagors are shown as entitled to a portion of the produce therefore, the definition of "usufructuary mortgage" is not attracted. The petitioners are not owners and they are not as well tenants within the meaning of "tenant" reproduced above. As such, their status of being mortgagees of the suit land is not affected by being liable to payment of a fraction of the produce to the mortgagor. In Muhammad Karamat Ali Khan v. Ganeshi Lal and another (A I R 1927 All. 552) it was held:‑

"There is nothing its the law which may prevent a usufructuary mortga gee from entering into any arrangement which might facilitate the recovery of what he might consider to be a reasonable return for his money . . . . . "

I am of the view that the short order in Writ Petition No. 75 of 1973 quoted in support of the contention does not promote the argument of the learned counsel. The learned D. B. dismissed the writ petition in limine on the short ground that revenue authorities had the lawful authority under section 11 of the Act with regard to the definition of usufructuary mortgage. For these reasons, I see no merit in this Revision Petition, which is accordingly dismissed with costs.

S. Q.

Petition dismissed.

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