1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the mortgagors who were the defendants in the civil suit to examine the two questions of law arising out of the judgment of the Peshawar High Court dated 14th of April, 1975. The first question was whether the High Court correctly took the view that the mortgage of the suit property created in 1892 remained unredeemed notwithstanding its redemption prior to 1916 and creation of new mortgages in respect of the same land. Secondly, whether the High Court could correctly hold that on the right redemption being lost to the owner mortgagors, the mortgagees became owners of the land because admittedly, the mortgaged property was the right to cultivate the land on payment of Batai at fixed rate and not the rights of ownership in the land.
2. The appellants moved the Collector on 1-7-1964 under the N.-W.F.P. Redemption of Mortgages Act (Act XXXII) of 1950 and obtained on 24-12-1964 the redemption of the mortgage without payment of any amount on the ground that the mortgage subsisted and was on the date they moved the application over thirty-four years old i.e. Effected prior to 1-1-1920. The mortgagees thereupon instituted a civil suit in October 1965 claiming that the mortgage created in 1892 was over sixty years old, was no longer a subsisting mortgage, the right to redeem it had been lost and the redemption ordered by the Collector on 24-12-1964 was without jurisdiction, illegal and non- operative on their rights. The land involved in the suit and mortgaged measured 12 Kanals 3 Marlas located in Swabi Maira Tehsil Haripur, District Abbottabad. The suit was contested by the appellants and the-following issues were framed on the pleadings of the parties:--- "(1) Whether the plaintiffs have got a cause of action? O.P.P.
(2) Whether the plaintiffs are estopped from suing? O.P.D.
(3) Whether the plaintiffs are in possession of the suit land as mortgagees for more than sixty years and as such, it cannot be redeemed and the order of the Collector, dated 24-12-1964 is without jurisdiction? O.P.P.
3. (4)Relief."
4. The issue No. 3 was decided by the trial Court in the following words:- "I am of the opinion that the first mortgage of the suit property, as described by the Revenue Officer in his order of attestation of the mutation made in 1892, the mortgage of the suit property was not discontinued and it remained subsisting. It is clear from the subsequent mutations of redemption and mortgage that the suit property and the parties remained the same. Only mortgage amount was increased. With the increase of mortgage charge, it cannot be presumed that the old mortgage was discontinued. My opinion gets support from the authority reported in PLD 1961 (W.P.)
5. Peshawar 81."
6. The other three issues were decided in favour of the plaintiffs respondents and the declaratory decree was granted to them on 26-7-1966.
7. The Additional District Judge, Hazara, allowed the appeal reversing the finding of trial Court on issue No. 3 by adopting the reasoning which appears in the judgment as hereunder:- "The main question in this case is, from which date the period of limitation will start? The learned trial Judge has based his finding on Mutation No. 1227 in which the Revenue Officer has written that the mortgage took place in the year 1892. This fact does not appear in the report of the Patwari which means that the Revenue Officer imported this knowledge to the mutation from some other sources. The Revenue Officer has given a definite date i.e. 24-3-1892 as the date of the mortgage.
8. This fact will show that there must have been some writing regarding mortgage produced before the Revenue Officer. Once it is taken for granted that there was some writing and it is not incorporated in the order of the Revenue Officer cannot be relied upon. The other thing which goes against the defendants is that if the mortgage had taken place in 1892, why did they keep silence for twelve long years for not getting the mutation attested. These facts will show that the mortgage actually took place in the year 1904 and not in 1892. Once this fact is decided then the case becomes simple. The period of limitation will start running against the defendants from the date of the attestation of the mutation in the year 1904. "
9. On second appeal, the High Court restored the finding of the trial Court and also its judgment and decree by holding as follows:- "There is nothing in the endorsements of the mutations, copies of which were brought by the learned counsel for the respondent and were shown to the learned counsel for the appellants to show that by new transactions mortgage period was increased by this or that act of the mortgagors. It comes to this that Mutation No. 875 as corrected by Mutation No. 993 and Mutation No. 876 only created additional charge and that one set of ownerswere satisfied with the lesser amount while the other set accepted more money. Mutations Nos. 874, 875 and 876 were attested on one and the same day, viz. 9-6-1916 and it would follow that Mutation 874 was 'Fak Takmeeli' and that the continuity of the initial mortgage was not broken and that by Mutations 875, and 876 additional charge was created. A. Reference to Nazeef v. Abdul Gheffar and others PLD 1966 SC 267 would be conclusive on the point that the creation of the additional charge will not per se terminate the original mortgage and result in novation and that it is open to a mortgagor to enter upon a new contract with respect to his share."
10. The learned Judge in the High Court interpreted the decision of this Courts in the case of Nazeef as holding that- "Only such a mortgage will have the effect of terminating the original mortgage which provides a new period. It seems to me that recourse to two mutations 875 and 876 was inevitable because after "Fak Farzi" one set of the mortgagors wanted to increase the charge by about Rs.20 while the other wanted to increase it by about Rs.68."
11. Mr. Abdur Rashid Qazi, Advocate, the learned counsel for the appellants, raised alternative arguments with regard to the question of subsistence of the mortgage in 1964 when the application for its restitution was made and allowed by the Collector. The first contention was that the mortgage was for the first time evidenced by Mutation No.1227 attested on 16-9-1904. The words of the attesting order of the mutation are as follows:-- The learned counsel wants to admit' and considers as binding the first part of the attesting order and to avoid the concluding part which mentions that the mortgage was created on 24-3-1892 and mortgagees are in possession since then. Such an avoidance is sought on the ground that it is extraneous to the attestation of mutation, it is not borne out by any other evidence or contract between the parties and what has been introduced by the attesting officer as his personal knowledge cannot bind the parties and create a mortgage from an earlier date. This view had prevailed with the trial Court but did not with the first appellate Court. The other argument of the learned counsel for the appellant is that it was clearly brought on record that at the time of the preparation of the quadriennial Jamabandi in 1916 it was found that the mortagage created in 1892 stood redeemed and thereafter two fresh mortagages had come into existence instead of one by all the owners in favour of the two mortgagees. In respect of 1/3rd share a separate mortgage had come into existence the mortgage charge being Rs.25 and in respect of 2/3rd share a different mortgage had come into existence for Rs.80. The redemption of the mortgages had already taken place and these facts were noticed at the time of the preparation of the quadriennial Jamabandi and were given effect to by Mutations Nos.874, 875 and 876 attested on the same day i.e. 9-6-1916.
12. As the mortgagors were different, mortgage share was different, the mortgage amount was different, it could not be said that the redemption was "Farzi" or "Takmeeli" and that no fresh mortgage had come into existence. With regard to the second ground, the learned counsel contended that the property which was mortgaged was not the ownership rights in the land but as admitted by both the sides, right to cultivate the land on payment of a share initially 1/3 and subsequently 2/5 of the produce. Even if the right to redeem had been lost the mortgage was not subsisting, the redemption could not be ordered the mortgagees could not as a consequence become owner of the land. They could at best be declared as possessing indefeasible cultivation right in the property mortgaged and not the rights in it as owners. The Courts have, according to the learned counsel for the appellants, fallen into an error in declaring the respondents- mortgagees to be owners of the land.
13. Mr. Fida Muhammad Khan, Advocate, the learned counsel for the respondents, on the other hand, contended that as the Mutation No.1227 was attested in the presence of the mortgagors, the recital that the mortgage had come into existence and the mortgagees had been put in possession in 1892 was based on an admission of the mortgagors themselves and reflected the factual position at the spot. Hence, the latter part of the attesting order of the Revenue Officer was as much a part of the order as the first part and the learned counsel could not pick and choose out of it. With regard to the redemption and the creation of two new mortgages, the learned counsel for the respondents submitted that the appellant never in their pleadings based their case on these mutations and that in fact the effect of the two mutations was a notional redemption and continuance of the earlier mortgage with enhanced charge. According to the learned counsel, the law laid down by this Court in Nazeef's case was applicable with full force.
14. The Mutation No.1227 attested on 16-9-1904 has been correctly' interpreted by the trial Court and the High Court because it reflected the contemporaneous state of facts and was based entirely on the admission of the parties concerned. The appellants being party to it, having knowledge of it and having kept quite over it for so long cannot now challenge a portion of it while pleading that the other portion of the attesting order should be kept intact. The mortagage was rightly held to have been created on 24-3-1892 on the terms and conditions as are reflected in that mutation.
15. As regards the redemption arid the creation of two mortgages where there was one, the fact finds mention in EXh.P.W.l/1, the except of the revenue record and the statement of Abdul Jalil, Sadar Office Qanoongo (P.W.1). A reference to these mutations reveals that though in fact they had been attested on 9-6-1916 but the redemption as well as fresh mortgages had taken place at a much earlier date during four years preceding the preparation of the quadriennial Jamabandi. The old mortgage stood redeemed and two mortgages, one of 1/3 share of the owners and the other 2/3 share of the other owners, were created enhancing the mortgage amount. The mortgagees remained the same as well as the mortgaged/ property i.e. The right to cultivation in the land but the owners in each mortgage were different, shares were different, the mortgage amount was different. In the case of Nazeef, the principle recognised in such cases was as described in the following words; "The principle to be followed in such cases is that when a person is possessed of a certain right and the question is whether by a particular conduct he has waived or renounced that right and his conduct is capable of two interpretation one involving loss of that right and the other preserving the right his conduct must be construed on the basis that he preserves his right. Every person is presumed to act to his own best advantage. If the mortgagee pays money to his mortgagor on the implied condition that the terms relating to this debt will be the same as relating to the original debt, his conduct is not consistent with the position that he retains all the benefits of the existence of the original mortgage and we should construe his conduct in accordance with his benefit. As a matter of fact it is the mortgagor who is in need of money and he would be prepared to accept terms favourable to the mortgagee and if the mortgagee wanted him to say explicitly that the previous mortgage will remain intact the mortgagor will probably agree, but the parties who are entering into a transaction without legal help are not aware of these intricacies and therefore such matters are not clarified."
16. The reasoning for the principle was provided in the following words:--- "When the mortgagor relies upon an additional charge he has to show that the intention of the parties was to put an end to the previous mortgage and to substitute therefore a new contract with the total amount constituting the mortgage money. It is necessary to keep in mind that the termination of the old mortgages must be established, if the mortgagor is to be relieved of the effect of non-redemption of that mortgage. If the additional charge be created by a deed then that deed will have to be looked at for the determination of the intention of the parties as to whether a new mortgage was intended to be substituted for the old one. If there be no deed then only such inferences can be raised as are necessarily involved in the conduct of parties."
17. The High Court by interpreting this decision as implying that "only such a mortgage will have the effect of terminating the original mortgage which provided a new period" has restricted the otherwise general principle and the test of intention of the parties incorporated in the decision.
18. Applying the decision of Nazeef's case, it is clear that a redemption mutation reflected the factual redemption of the mortgage and thereafter creation of two separate mortgages by two separate set of parties in favour of the same mortgagee on different terms with regard to the amount and the share mortgaged. Such a redemption cannot be said to be a notional redemption, a redemption not in fact taking place or as "Fak Takmeeli". The mortgages in respect of which redemption was sought under Act XXXII of 1950 were definitely those created before 1920 i.e. In the four years preceding 1916 and were subsisting mortgages in 1964.
19. None of the Courts has taken note of the exact nature of the right in the property which was mortgaged. It was certainly not the ownership right. It was only the right to cultivate the land. Even if the right to redeem such a mortgage became time barred, the mortgagees could not be declared to get more than what was mortgaged to them. However, as this aspect of the case has not been dealt with by any of the Courts and the appeal can be decided on the first point already dealt with it is not necessary to record an authoritative pronouncement on this question.
20. For the foregoing reasons, we accept this appeal with costs, set aside the impugned judgment and decree of the High Court and restore that of the first appellate Court but the reasons are different from those given by the learned first appellate Court.