1984 PLP 1205 (CLC)

‑‑S. 22‑Limitation Act (IX of 1908), Art. 148--‑Lekha Mukhi Mortgages‑Redemption‑ Limitation‑Lekha Mukhi Mortgages executed between parties in years 1890 and 1894‑Applications for declaration that land in mortgage non‑evacuee made in 1968‑ Limitation to redeem Lekha Mukhi mortgages started from date of execution of mortgages‑Orders of Deputy Custodian Evacuee Property that after expiry of limitation period of sixty years, right of redemption came to an end, held, unexceptionable.‑[Mortgage] Ch. Muhammad Nazir Ahmad for the Settlement Department. This order will dispose of Appeals Nos. 40 of 1976 and 41 of 1976 as these arise in similar circumstances.

2. On 8th April, 1968, the appellants filed applications under section 22 of Pakistan (Administration of Evacuee) Property Act, 1957 Act XII of 1957 saying that their predecessor‑in‑interest had mortgaged land with the Hindus but they had remained in possession. The land was allotted by the Settlement authorities on 13th December, 1967 to dis placed persons. The latter had asked for possession. Therefore they prayed for a declaration that the land was non‑evacuee. The Deputy Custodian found that mutations of mortgages were sanctioned on 30th April, 1890 and 12th June, 1894. Possession was of evacuees through Rehabilitation Commissioner and the appellants were shown as mortgagors non‑occupancy tenants. Mortgages having not been redeemed within 60 years from the execution of the mortgage, the mort gagors had lost their right of redemption. Therefore, the lands were evacuee and rightly allotted. He dismissed the applications vide separate orders, dated 29th April, 1970. On appeals, the cases were remanded for examination of facts and law afresh vide order of the learned Custodian dated 24th June, 1976.

3. On remand, the learned Deputy Custodian found that the prede cessor‑in‑interest of the appellants in the first appeal executed a mortgage deed (Exh. P. 1) on 23rd April, 1890 and a Mutation No. 9 was accord ingly sanctioned on 30th April, 1890. The predecessor‑in‑interest of the appellants in the second appeal mortgaged land vide Mutation No. 27 sanctioned on 12th June, 1894. The mortgages were in favour of the non‑Muslims. The latter were put in possession and the appellants being non‑occupancy tenants and mortgages having not been redeemed within sixty years, the appellants have lost their rights. This is vide orders dated 30th October, 1976. Hence, these appeals.

4. Learned counsel for the appellants has vehemently contended that per the terms of the mortgage deed (Exh. P. 1) and the corresponding Mutation No. 9 in the first case as well as the Mutation No. 27 in the second case, the mortgages were not only specifically described as Lekhi Mukhi but the tenor also makes it abundantly clear that these were usufructuary mortgages inasmuch as that the possession had expressly been delivered to the mortgagees. The latter were authorized to retain possession until payment of the mortgage money and to receive rents and profits accruing from the property to appropriate the same in payment of the mortgage money in lieu of interest. On settlement of accounts, the mortgagors were entitled to redeem. Since no settlement of the accounts had taken place, no cause of action accrued to the appellants and when they did file the applications in the year 1968, the appli cations were within limitation. Learned counsel explained that Lekhi Mukhi mortgage is usufructuary mortgage and in such like Mort gages the period of limitation does not start from the execution of the mortgage but from the date when the cause of action accrues and that happens when the mortgage amount is adjusted by the usufruct of the pro perty alongwith the interest.

5. Learned counsel appearing for the respondents and the Settlement Department have submitted that the learned Deputy Custodian was quite right in holding that the limitation in the type of mortgages executed between the parties, would start from the date of the execution of the mortgage and cannot be deferred for settlement of accounts to an indefi nite period.

6. In the case of Khandu Lal v. Fazal (1 I L R 89 (Lah. Series) ) a similar argument was advanced by the learned counsel for the appellants, found favour with the lower appellate Court. When the matter came up before the High Court, the learned Judge referred at page 91 of the report to an earlier decision with approval and observed that "a lekha mukhi mortgage has been explained as being a usufructuary one by which the land is made over to the mortgagee who has to look to its produce for the payment of the mortgage debt, the mortgagor undertaking no personal liability and the mortgagee not being entitled to sue for the debt. The matter is also dealt with in Rattigan's Customary Law, 8th Edition, page

151. Counsel for the respondent supports the construction by the Lower Appellate Court of a lekha mukhi mortgage and contends that the starting point for limitation in such a mortgage is the date when the debt is fully realized from the produce. But in that case, I think, the mortgage would have become automatically redeemed. There appears to be no reason to take a different starting point for limitation than in the case of ordinary usufructuary mortgages. No date was specified for redemption and, consequently, the mortgage became liable to be redeemed immediately after it was made. This principle of law is so well‑established that it cannot be contested. In the present case, Article 148 of the Limitation Act would apply and, therefore, the period for limitation is sixty years from the date of the mortgage." In a subsequent case before a learned Division Bench prescribed over by Sir Shadi Lal, Kt., Chief Justice titled Dittu Mal v. Ilahi Bakhsh and others (101 I C 549=A I R 1927 Lah. 828) where terms were identical as in these cases, it was observed that; "Bala Mal was to collect the crops and credit the proprietor with their value debiting the Government revenue, costs of repairs, working expenses etc. Under certain circumstances he was also entitled to charge interest. I think that Bala Mal was from the outset a mortgagee or lekha Mukhidar. That this was the situation from the start and continued so upto the present is evidenced by the fact that the Revenue Records con sistently show Bala Mal and his successors as being mortgagees and Murad etc., and their successors as being mortgagors." It was further observed that "Khundu Lai v. Fazal (quoted above) is an authority for the proposi tion that Art. 148 of the Limitation Act applies to mortgages of the lekha mukhi variety and that time begins to run from the date of the mortgage. The admitted position in these appeals is that the mortgages were of lekha mukhi type and the terms were similar to the ones in the cases referred to above. The mortgages were executed in 1890 and 1894. By the time the applications were made before the learned Deputy Custodian in 1968, the sixty years period provided for in Article 148 of the Limitation Act had long gone by. Therefore, the learned Deputy Custodian was quite right in holding that the right of redemption had come to an end with the expiry of the limitation period of sixty years as laid down in Article 148 of the Limitation Act. No other point was urged in these appeals. Hence, the appeals have no force and are, accordingly, dismissed t but in the circumstances, the parties shall bear their own costs. M. Y. H. Appeal dismissed