' Mortgaged land measuring 16 Kanals comprising Khasra Nos.3579 and 3638, Khewat No,543/538/401, situated in Mauza Khudian, Tehsil and D'strict Kasur in favour of the petitioner in 1960 for .a sum of Rs,700 was redeemed on payment of Rs,700 in favour of respondents on their.
Application under section 10 of the Redemption and Restitution of Mortgaged Land Act, 1964, by the Collector vide his order, dated 29-1-1991. The appeal and revision of the petitioner have been dismissed by the Commissioner, Lahore Division, and Member (Rev.) Board. Of Revenue, Punjab on 17-7-1991 and 14-3-1993, respectively.
2. The learned counsel for the petitioner contends that the petitioner was one of the mortgagees and therefore, he purchased the disputed land for a sum of Rs,1 lac from one of the co-sharers, namely, Muhammad Saeed son of Azizur-Rehman vide Mutation No,6766 dated 2-11-1988 and in these circumstances the Member, Board of Revenue was not legally justified in passing the order dated 14-3-1993 to maintain the order of the Additional Commissioner (Revenue), Lahore Division, directing that the respondents should be, put in possession.
3. Fateh Muhammad son of Shahab Din mortgaged the land vide Mutation No,2388 dated 14-11- 1960. Thereafter, said Fateh Muhammad sold the land to Aziz-ur-Rehman. After the death of Aziz- ur-Rehman, his four sons, namely, Khalid Muhammad Latif, Muhammad Salim, Muhammad Sharif, and daughters and widow including his fourth son Muhammad Saeed became co-sharers in the land. Muhammad Saeed being co-sharer transferred his share vide Mutation No,6766, dated 2-11- 1988 in favour of Abdul Qaddus, petitioner. In this view of the matter, only fractional share was sold to Abdul Qaddus by Muhammad Saeed, one of the co-sharers. Therefore, the status of the petitioner shall not be changed by mere purchase of fractional share of Muhammad Saeed in the mortgaged land. Purchase of a part of the mortgaged property by a mortgagee, subject to his ' mortgage has not necessarily the effect of fully discharge the mortgage in accordance with last para. Of section 60 of the Transfer of Property Act, 1882, which reads ..As follows:-- "60 ................................
' Redemption of portion of mortgaged property. Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage. Except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
This view finds support in Full Bench decision in case referred as Nand Kishore v. Raja Hari Raj sajid others (ILR 20 All.23) wherein it, him the held that the purchase of a porn on of the mortgaged property by a mortgagee, subject to his mortgage, has not necessarily the effect of fully discharging the mortgage. In the case of Bisheshur Dial and another v. Ram Sarup ILR 22 All. 284, which is also a Full Bench decision, it has been held that where a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him. In case reported as State Bank of Pakistan v.
Khaledar M.A. And others PLD 1963 Dacca 844 it has been ruled:-- "14. The purchase of a share in the equity of redemption by the mortgagee, whether in Court sale or by a private treaty, cannot have the effect of fully discharging the mortgage debt. It will discharge only that portion of the mortgage debt which was chargeable over the share purchased. If a part of the mortgaged property be purchased by a sole mortgagee, or by all the mortgagees, when there are more than one, the integrity of the mortgage is thereby broken up and the owner of the remainder of the property is entitled to redeem his own share upon payment of a proportionate part of the amount due on the mortgage. But the mortgage does not, by reason of such purchase, become extinguished. This is clear from the provisions of last paragraph of section 60 of the Transfer of Property Act."
' The Additional Commissioner (Revenue) as well as the Member, Board of Revenue was right in saying that "a mortgage is a conveyance of land an assignment of chattles as a security for payment of debt or the discharge of some other obligation for which it is given". In this case, mortgage has been fully discharged on payment of Rs,700, the mortgage, money, therefore, no exception can be taken to the orders of the Additional Commissioner and of the Members Board of Revenue. Resultantly, this petition fails and the same is dismissed in limine. #EndJudgment