Judgement

Consolidated Cross-appeals (No. 69 of 1931) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province (March 8, 1930), varying a decree of the District Judge, Peshawar (April 25, 1929).

In the first of the consolidated appeals a question arose with regard to a possessory mortgage, of March 12, 1917, of land in the Punjab, accompanied by a lease of the same date, by which the mortgaged land was leased back to the mortgagor. Upon the termination of the lease the mortgagee claimed possession. The Court of the Judicial Commissioner, affirming the District Judge in that respect, refused a decree for possession, holding that the transaction was in reality a simple mortgage of the land.

The facts and the grounds of the decision appear from the judgment of the Judicial Committee.

1933. Feb. 27, 28 ; March 2. De Gruyther K.C. and Parikh for the plaintiff, appellant in first and respondent in second appeal.

Sir Leslie Scott K.C. and Wallach for defendant No. 2, a respondent in first and appellant in the second appeal.

With regard to the question above mentioned reference was made for the plaintiff to the Indian Evidence Act, 1872, s. 92 ; Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.) ; Maung Kyin v. Ma Shwe La (( 1917) L. R. 44 I. A. 236.) ; and to Baksu Lakshman v. Govinda Kanji(( 1880) I. L. R. 4

B. 594.), thereby disapproved. For the defendant No. 2 reference was made to Hanif-un-nisa v. Faiz-un-nisa (( 1911) L. R. 38 I. A. 85.), and it was contended that, having regard to proviso 1 to s. 92, evidence to show what was the transaction really intended by the parties was not excluded.

April 11. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. These are consolidated cross-appeals. Only the first of them has been seriously contested. In this, Mian Feroz Shah is the appellant, and Nawab Mohammad Akbar Khan the only appearing respondent, and they will be so referred to in this judgment.

Of the second appeal, their Lordships need only say that there is no valid ground upon which the decision of the Judicial Commissioner can be attacked.

The appeals arise out of a series of complicated transactions which are fully detailed in the judgments below, and it is not necessary to set them out again. It will be sufficient to state the main facts upon which the contentions of the parties turn.

One Sohbat Khan, who is a pro forma party to both appeals, was the owner of a considerable area of land in the village of Sheiku in the Peshawar District. On March 12, 1917, he mortgaged 1011 kanals 8 marlas to the appellant and his brother. It is not disputed that the appellant is now solely entitled under this mortgage. It was for a term of ten years, and was in form a mortgage with possession, the sum secured being Rs. 44,233. Possession was not, in fact, taken by the mortgagees, but by a second document of even date, the mortgaged land was leased to Sohbat for the same term at a rent of Rs. 1224 per annum, which may be taken to represent the yearly interest on the mortgage debt. Mutation was duly recorded in the Government records on the basis of the mortgage in the names of the mortgagees.

On November 23, 1918, Sohbat mortgaged another 140 kanals to a third party whose heirs subsequently transferred their security to the appellant.

The respondent was an execution creditor of Sohbat. He claimed to have a charge upon another part of Sohbats land, the validity of which is disputed, but this claim is not material to the present appeal. His decree against Sohbat was dated March 31, 1920, and he proceeded to execute it by attachment of (inter alia) the 1011 kanals odd which had been mortgaged to the appellant and attempted to bring them to sale. Sohbat, however, was a member of an agricultural tribe, and the sale of his land was prohibited by s. 16 of the Punjab Alienation of Land Act, 1900. The sale was at first ordered by the Revenue Assistant, but was disallowed by the Collector. Eventually, some