P L D (Rev (PLP)

This is a second appeal from the order of the Commissioner, Rawalpindi Division, dated the 4th February 1946, upholding that of the Collector, Rawalpindi, dated the 19th January 1944, whereby the mortgage effected in 1885 with regard to the land measuring 53,825 Kanals situate in the villages of Kot Sundki, Kot Zandi and Behlol, in the Attock district, was extinguished without payment of any compensation under the Restitution of Mortgaged Lands Act, 1938. The facts are that the land in suit was originally mortgaged for Rs. 62,000 by Sardar Khuda Dad Khan with Sardar Kirpal Singh and Sardar Sujan Singh, of whom the present mortgagees are successors‑in‑title. When Sardar Khudadad Khan died, Mr. Thorburn, then Commissioner Rawalpindi, ordered on 29 January 1895 the mutation to be sanctioned in the name of his widow, Mst. Ilahi Khanam, as possessor‑in‑life‑interest of the estate of her deceased husband and remarked that that interest admittedly in no way barred powers of redemption by reversioners of the deceased. When the Punjab restitution of Mortgaged Lands Act, 1938, came in force in 1939, the Deputy Commissioner, Attock, caused Mst. Ilahi Khanam to be approached with representation that it was to her interest to file a redemption application under section 4 of the said Act and, in fact, she made an application on 29 November 1939 before the Collector, Attock. The necessary revenue papers were prepared in the Collector's office and the parties summoned. ‑At the next hearing she asked through her counsel that the application be filed as she did not wish to proceed with the restitution. The Deputy Commissioner, Attock, had an interview with the lady as there seemed some ambiguity regarding her wishes in the matter and she informed him that she did not wish to apply for restitution. The file, therefore, was consigned to the record room on 1st May 1940 along with the revenue papers. In the meantime on 22 April 1940 the respondents having become apprehensive that limitation for redemption would expire in 1945 had applied for the restitution of the land in suit. The case was instituted, in the first instance, in the court of the Collector Attock, but, as the estate of respondent No. I was under the superintendence of the Court of Wards and the Collector was its Administrator, it was transferred on the initiative of the Collector himself to the Collector Rawalpindi district for disposal vide, Commissioner Rawalpindi's order, cared 28 May 1940. The Collector, by his order, dated 19 January 1944, decided that the respon dents were competent to apply in order to protect their rights as Mst. Ilahi Khanam widow of the original mortgagor, had shown extraordinary lack of interest in the property by failing to institute a suit for its redemption and the interest of the reversioners would be irretrievably damaged. He also found that the mortgagees had already benefited to the extent of Rs. 4, 31, 592/5/8 and being thus more than many times of the mortgage debt of Rs. 62,000 originally advanced, the question of granting any compensation to the mortgagees did not arise. The further charge of Rs. 11,00, covered by the mortgage deed of 11 November 1890, was ignored by him as, in his opinion, it could not be taken into consideration in a case under the Act. The Collector accordingly ordered that the mortgage be extin guished with directions that the title deeds should be restored to the mortgagors, who could take such action as they considered fit under the rules to enforce the award given to them. The appellants then went in appeal to the Commissioner, who upheld the Collector's, order and reject ed the appeal. The appellant have, now, come in second appeal to the Financial Commissioner with almost a repetition of the, grounds that they urged before the commissioner. I have heard lengthy arguments from counsel on both sides the most important question for determination is whether collaterals of tire deceased mortgagor could file a petition under section 4 of the Punjab Restitution of Mortgaged Lands Act, 1938. Once it is held that they had no locus standi to make the petition in question, the question of restitution of the land does not arise. It is an admitted fact that the respondents, who sponsored the petition before the Collector are the reversioners of the deceased Khudaded. Again, it is a fact that the land stands mutated in the name of Mst. Ilahi Khanam, widow of the late Khudad Khan, as possessor of life‑interest. The trend of rulings cited as 49 P L R 85 and A I R 1939 Bom. 305, point to the well established rule of law that when any rule of statute takes away some rights or privileges of a man, it should be strictly construed and shall not be extended to include those, rights and privileges which are not expressly mentioned or necessarily, I implied. The definition of mortgagor, concurring in section 3 (4), I does not include a reversioner, and even if the reversioner is held entitled to redeem a mortgage tinder section 91 of the Transfer of Property Act, it does not mean that he is included in the definition of "mortgagor". The words "Besides the mortgagor" with which section 91 begins, clearly exclude that possibility. Further, it is almo3t settled law that the position and the nature and incidents of a widow's tenure under custom are exactly identical with) those under the Hindu Law "48 P L R 350". As held in A I R 1942 Lah. 42, a Hindu widow, although enjoying a mere life estate, is treated as an owner so long as she remains in possession of the property, but, in spite of this, her estate is never more than that of a widow's estate limited in particular respects. Her right is of the nature of a right of properly ; her possession is that of owner ; her powers in that character are, however, limited ; but so long as she is alive no one has any vested interest in the succession. The learned counsel for the petitioner, therefore stressed with considerable force that the reversioners had a mere spes successions. It may happen that one or all of them may pre‑decease the v, low and in that case the mere‑expectancy of their succeeding to the widow may never materialise see A I R 1926 Pat. 1, and A I R 1925 Lah.

341. It is also interest ing in this connection to note that whereas under section 4 of the Redemption of Mortgages (Punjab) Act, 1913, it has been provided that the mortgagor or other person entitled to institute a suit, may apply for redemption, under section 4 of the Punjab Restitution of Mortgaged Lands Act, the reference to "other persons entitled to institute a suit" presumably under section 91 of the Transfer of Property Act has been omitted. This is very significant and I mention it, because in Mr. Thorburn's order of 1895 there is a casual remark that the powers of redemption by reversioner are not barred by the life interest in the estate possessed by the widow. Under the Restitution of Mort gaged Land Act, only a Mortgagor can apply for restitution and the mortgagor includes the assignees or the representatives in interest of such `mortgagor' (vide section 3 (4) of the Act). I feel, therefore, constrained to hold that the respondents had no lacus standi to petition to the Collector under section 4 of the Act and that their application was bad in law. There is another aspect of the case. Under section 7 (i) of the Act the Collector, if he come to the conclusion that the mortgage should be extinguished, must order whether the mortgagee is still in possession and whether the mortgagor be put into possession as against the mortgagee. In this peculiar case the mortgagor, viz., the widow, was apparently colluding with the mortgagees and had not applied for restitution. The reversioners too could not be put into Possession of the property during the life-time of the widow, and as such any relief granted under the Act in terms of section 7 (i) would have been infructuous. This is why both the Collector and the Commissioner passed very peculiar orders on 22nd May 1944, and 5th February 1946, respectively. That the Act provides no relief in cases like the one under consideration is an additional argument for holding that the respondent's case is not covered by the Act. Finally it seems that the lower Court were led to order restitution more or less in the name of equity, because they apprehended that once the period of 60 years was over the mortgage would be foreclosed for ever and the interests of the reversioners would thereby be irretrievably damaged. That the Courts were labouring under a misunderstanding becomes evident when it is realised that as the mortgage was subsisting on the 15th May 1939 (the date when the Act came into force), the reversioners can make a petition under section 4 of the Act at any time after that date and no handicap by way of limitation etc. seems to stand in their way : See 1946 L L T

6. To sum up, the respondents were not competent to make the application they did. I, therefore, accept the appeal, set aside the orders, dated 4th February 1946, passed by the Commissioner on 19th January 1944 passed by the Collector, Rawalpindi, thereby restoring the status qua ante. In view of the peculiar circumstances of the case I leave parties to bear their own costs. Inform parties and their counsels accordingly. K. A. M. Appeal accepted