1. MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against the judgment, dated 17-6-1969 of a Division Bench of the erstwhile West Pakistan (Lahore) High Court, whereby a Constitutional Petition against an order of Board of Revenue, arising out of a restitution order under the West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), was dismissed.
2. The facts which are relied upon by the appellant as basis for his case are: that on 1-9-1920, Bulaqi and Muhammad Sadiq predecessors in-interest of respondents Nos. 6 to 11 mortgaged over one hundred kanals of land against loan of Rs. 12,000 in favour of Buta Khan predecessor-in-interest of the appellant. The essential terms of the mortgage were that the possession of land was to be given to the mortgaged the mortgagors were to remain as tenants giving Batal to the mortgaged the interest on Rs. 8,700 was to be adjusted against the income from the land whereas interest at the rate of Annas 8 per mensem per cent was to be paid on Rs. 3,3G0 this part of interest could be demanded by the mortgaged but in case of non-payment, there was no provision for mode of recovery; as against this it was provided that it would become part of the principal amount ;.The mortgagor could redeem the land on payment of principal and interest in the month of Jeth or Magh, otherwise, the principal and the interest were to be adjusted against the income of the land.
3. Respondents Nos. 1 to 4 who are the purchasers of equity of redemption sued for redemption on 5- 6-1959 and obtained decree on 17-10-1960 on payment of Rs. 4,560. On appellant's appeal, the decree was maintained on 4-7-1962 with modification of the amount to its. 15,300. Second appeal was filed in the High Court from respondents' side. The present appellant, it appears, had accepted the decree for redemption on payment of Rs. 15,300.
4. In the meanwhile during the pendency of the second appeal in the High Court, the West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964) came into force on 31-7-1964. An application was moved on behalf of the respondents before the Collector under the said Act for the redemption of the mortgage. By his order, dated 26-6-1965, the Collector exercising his powers under the said Act directed the restitu--tion of the mortgaged land without any payment. This order was challenged in appeal, but an Additional Commissioner dismissed the same on 22-2- 1965. The appellant then moved the Board of Revenue in revision and the same having been dismissed on 15-7-1967, he filed a writ petition in the High Court. It was dismissed by a Division Bench on 17-6-1969 on finding of fact that the mortgage of land to this case was of usufructuary nature.
5. Therefore, the order of restitution of land by the Collector was valid and with lawful authority. It was also held that Act XIX of 1964 was not ultra vires the Constitution. The second appeal from the respondents side which was pending in the High Court was dismissed on the same day as having become infructuous, in view of the order of restitution passed by the Collector on 26-6-1965, which was maintained throughout.
6. Leave was granted to consider two submissions made from the appellant's side: firstly, that on the day that Act XIX of 1964 came into force, it was hit by the fundamental right, relating to property, enshrined in the 1962 Constitution; and secondly, that the finding by the High Court that the mortgage in question was usufructuary in character, needed re-examination.
7. Learned counsel for the appellant has reiterated the arguments advanced before the High Court on both the points. On the vires of the Act, learned counsel stated that although on the day the High Court dismissed the writ petition, the point with regard to fundamental rights could not be urged on account of the then Martial Law and notwithstanding the same position now prevailing, the appellant was entitled to urge that on the day Act XIX of 1964 was enacted, it was hit by the then operative fundamental rights enshrined in the Constitution of 1962; therefore, the Act was void ab initio. And that being so, the Collector could not have given any relief under the said Act in 1965.
8. When we pointed out to the learned counsel that similar argument was raised in the well-known case of Muhammad Mehdi Ali Khan (PLD 1959 SC (Pak.) 187), but was not accepted learned counsel after stating that he was not aware of the same, did not press the point any further.
9. On merits, learned counsel frankly conceded that if the mortgage in this case is found to be of usufructuary nature, then the appellant has no case, because the order passed by the Collector on the assumption that it was a usufructuary mortgage could be passed under section 12 of Act XIX of 1964, The controversy on merits, therefore, relates to whether in fact it was a usufructuary mortgage or as argued by the learned counsel, an anomalous mortgage. Section 58 of the Transfer of Property Act, the principles underlying which have been invoked by the learned counsel, has defined both the phrases as follows "58.-(a) . . ---------------------------------------------------------------to
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(d) Usufructuary mortgage.-Where the mortgagor delivers possession or expressly or, by implication binds himself to deliver possession of the mortgaged property to the mortgaged, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rent 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 mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgaged an usufructuary mortgaged.
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(g) Anomalous mortgage.-A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage."
10. The mortgage deed in the present case consists of two parts : (1) the main deed which embodies the transaction of mortgage; and (2) a note appended after the completion of the main mortgage deed as an explanation or addition thereto. In the main body of the mortgage deed there is no doubt left by the parties that they intended the mortgage to be a usufructuary mortgage-the principal and the entire interest was to be adjusted against the income of the land, the possession of which, it is admitted, was transferred to the mortgaged. Learned counsel agreed that if the main body of the mortgage deed is kept in view, it would be purely a usufructuary mortgage. But he vehemently argued that the said part of the mortgage deed was to be read with the note appended at the end; wherein it was stipulated that the interest at the rate of Annas 8 per mensem per cent was to be paid by the mortgagors to the mortgaged; and further that the mortgaged could make a demand from the mortgagors in that behalf; therefore, the High Court should have held that this clarification with regard to a part of the interest, created a personal liability against the mortgagor and thus converted the otherwise usurfructuary mortgage into an anomalous mortgage. The learned counsel also pointed out that the covenant regarding "demand" of this part of the interest by the mortgaged from the mortgagors was ignored by the High Court, therefore, the impugned judgment was liable to be set aside.
11. We do not agree with they learned counsel that the covenant relied upon by him was ignored by the High Court. It is specifically mentioned in para. 9 of the impugned judgment that "in the main body of this deed of mortgage, it is expressly stated that the interest due on the principal sum shall he equal to the profits from the land and no rate of interest is specified. According to another stipulation the mortgagors could redeem the land on payment of the principal and interest . . . . . .
12. But by way of addenda at the foot of the mortgage deed a new clause was inserted in this document. It provides that the interest due on a part of the principal sum of Rs. 9,700 shall be equal to the profits from the land till redemption and that the remaining sum of Rs: 3,000 shall carry interest at the rate of Rs. 0-8-0 per cent per mensem which shall be added to the principal sum and that the mortgagors could redeem the land on payment of the principal plus the interest or on demand by the mortgaged. In this document there is no express personal stipulation by the mortgagors for the payment of the amount to the mortgaged. This mortgage qua the whole of the principal sum of Rs. 12,000 is a mortgage with possession and it cannot be contended that this was a combination of two mortgages, namely, a simple mortgage for Rs. 3,300 and a mortgage with possession for Rs. 8,700. The last clause added to the mortgage deed merely stipulates the mode of redemption on payment. 1t does riot contain any covenant or stipulation by the mortgagors to be personally liable for the repayment of the amount. In the light of above discussion it follows that this was a usufructuary mortgage covered by section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964".
13. The High Court surveyed the case-law cited before it on the inter--pretation of section 58 and related provisions of the Transfer of Property Act. It is not necessary to re-survey the same. It depends upon the interpretation of the deed and appreciation of attending circumstances, as to whether it was not a usufructuary mortgage. It would appear from the relevant portion of the impugned judgment reproduced in the foregoing paragraph that the learned Judges of the High Court were conscious about all the fact and circumstances of the mortgage in dispute and in particular that a demand could be made by the mortgaged with regard to the interest on Rs. 3,300.
14. But they interpreted this stipulation in the context of the other covenants in the main body of the mortgage deed as also in another very important context: namely, that if this part of the interest, notwithstanding the demand, remained unpaid, it shall be added to the principal sum. This discloses clear intention of the parties that even the interest on Rs. 3,300 when not paid by the mortgagors would not be recoverable through a suit by the mortgaged, but it would be added to the principal amount and when so added it would be governed by the covenants in the main body of the deed. Looked at from whatever angle, the finding of the High Court tha--t was a usufructuary mortgage, does not suffer from any infirmity legal or otherwise. It needs to be emphasised that whether or not a particular mortgage falls within one or the other definition contained in section 58 of the Transfer of Property Act, depends upon the circumstances of each vas e and in particular the phraseology used in each transaction. All the forums approached by the parties on the civil or revenue side held that the mortgage in question was of usufructuary character. The High Court has in exercise of its writ jurisdiction refused to interfere in this behalf. The impugned judgment is not against any law or principle.
15. This appeal accordingly has no force and the same is dismissed with costs.