P L D 1954 Peshawar 78 (PLP)

MUHAMMAD SHAFI, J.‑One Saifullah was the owner of half of Khasra No. 219/1085, measuring 8 kanals 8 marlas, situated in village Shewa, Tahsil Swabi, District Mardan. The present Khasra number of this land is

689. The other two owners in the remaining half were Mohammad Ali, son of Shah Wali and Nawab. On 17th January 1900, the Patwari reported that Saifullah had by a registered deed written on 8th November 1899, mortgaged his half share in. favour of the said Muhammad Ali, and that Muhammad Ali was consequently in possession of the entire Khasra number. On this report mutation No. 838 was entered. On 21st March 1900, Saifullah appeared before the Attesting Officer, and admitted that his share in this Khasra number had been mort gaged for Rs 850 in favour of Muhammad Ali. The mutation as a result of the above admission was duly attested. The subsequent revenue papers show that Nawab, the third co- owner of this Khasra number, was accepted as mortgagee of the land along with Muhammad Ali. An entry to that effect was made in the revenue papers, Saifullah then died. He was succeeded by Azim Khan, who by mutation No. 6471 attested on 12th May 1925, further mortgaged his share in the Khasra number in question in favour of Samarkand, Nauroz, Shamroz. Musharaf and Gul Sharaf for Rs. 950, out of which Rs. 850 were to be paid to the previous mortgagees viz., Muhammad Ali and Nawab. On 3rd November 1951, Samarkand made an application in the Court of Collector Mardan under section 4 of the North West Frontier Province Restitution of Mortgaged Lands Act XXXII of 1950, praying for the restitution of the possession of the mortgaged land on the ground that the mortgage was effected prior to 1st January 1920, anti by force of the said law it stood extinguished without payment of the mortgage‑money. This application was accepted by the Collector on 26th. April 1952 and the mortgage in favour of Nawab and Muhammad Ali was extinguished. Muhammad Ali in the meanwhile died and has been succeeded by Qadar Khan, who has now instituted a suit against Samarkand etc., for possession by redemption of the Khasra number in dispute on payment of Rs.

100. He wishes to redeem the mortgage created by Azim Khan by mutation No. 6471, attested on 12th May 1925. The learned trial Court dismissed the suit, on the ground that he had no locus standi to redeem the mortgage. On appeal the learned Senior Sub‑Judge Mardan, has held that under section 91 of the Transfer of Property Act a co -sharer has got an interest in the property and as such he is entitled to redeem the mortgage created by the other co -sharer. He decreed the plaintiff's suit, and passed a preliminary decree in his favour on payment of Rs.

100. Samarkand and Nauroz have come up in revision to this Court, and the only point argued before me is whether a co‑sharer of a property can redeem the mortgage created by another co‑sharer of the same land. The Transfer of Property Act does not apply to the North‑West Frontier Province, but the principles underlying section 91 of the Transfer of Property Act are the principles of equity 'and good conscience, and should therefore, in my judgment be adopted by the Courts in the North‑West Frontier Province. Under section 91 besides the mortgagor all those persons who have any interest in or charge upon the property mortgaged or in or upon the right to redeem the same have got the right to institute a suit for redemption of the mortgaged property. The question for decision is, whether a co‑sharer can be said to be a person who has any interest in the property mortgaged or in or upon the right to redeem. In my view, he has got such an interest, which entitles him to bring a suit for the redemption of the mortgage. To say that a co‑sharer has 'no interest in the mortgaged property is shutting one's eyes to the actual facts. The learned counsel for the petitioners in support of his contention has quoted I Single Judge Ruling of the Nagpur Judicial Commissioner's Court, reported as A. I. R. 1930, Nagpur, page

173. In this case it was held that if a tenant‑in‑common mortgages a certain land in favour of another person, then he would be taken to have mortgaged only his share in that land, and the other tenants‑in‑common in the common property would not be considered as having any interest in the mortgaged land, because the tenants‑in‑common always have a defined share, and they must own and hold it not in unison with the other co‑owners, but independently of them. With greatest respect to the learned judge I am afraid it is not possible for me to accept his view on the proposition involved as correct. If a tenant‑in‑common mortgages his own share as Well as the shares of the other tenants‑in‑common in a certain land in favour of a third person, then the other tenants‑in‑common have obviously got such an interest in the mortgaged property, which should entitle them to institute a suit for the redemption of the mortgage. To hold it other wise would jeopardize the interests of the non‑mortgaging tenants‑in‑common. I am consequently of the view that Qadar Khan, who was a co‑sharer in this land, could in law institute a suit for the redemption of the mortgage. The result is that I, uphold the finding of the learned lower appellate Court, and dismiss the revision petition with costs. Pleader's fee Rs.

50. Orders announced. A. H. Petition dismissed,