Sir Madhavan Nair:-

These are Consolidated Appeals by the plaintiff, defendants 4 to 8, and Mohib Ali, a transferee from defendants 13 and 14, from the judgment and decrees dated 29-5-1941 of the Court of the Judicial Commissioner North-West Frontier Province, Peshawar, varying the judgment and decree dated 31-10-1939, of the Court of the District Judge, Peshawar, which in turn varied a judgment and decree dated 3-12-1938, of the Senior Subordinate Judge, Peshawar, as a result of which the plaintiff and defendants 13 and 14, were given decrees for the redemption in specified "sharesinthepropertyindisputewiththeexceptionofthesiteleasedbygovernmenttoParmaNand(fatherofdefendants4to8)in1934," on payment of specified sums of money.

[2] The appeals arise out of a suit for the redemption of mortgages executed by a Muhammadan Chaudhri Nathu. Broadly stated, the questions arising for determination relate to who are the representatives of the mortgagor, he being dead, entitled to redeem the property; whether the property is liable to be redeemed at all; what is the extent of the interests of the representative in the property to be redeemed; and whether the Cinema built on the site 'excepted' by the decree, by the father of defendants 4 to 8, should not be delivered to the plaintiff.

[3] The facts of the case are somewhat complicated, but for the purposes of these appeals may be briefly stated as follows: - On 27-3-1884, Chaudhri Nathu executed a mortgage with possession of the suit property described below, in favour of one Lorinda Mal, the grandfather of defendants 4 to 8. He executed further mortgages of the same property in favour of Lorinda Mal for Rs. 500, and for Rs. 1000, carrying interest at 15 per cent, per annum on 1-5-1884, and 8-8-1886, respectively.

[4] The mortgaged property is described as a serai consisting of 26 rooms and some buildings all built by Chaudhri Nathu on a site of which he was in possession before 1871, as a licensee from the Government. The land is situated within the Cantonment of Peshawar and was held under what is known as the 'Cantonment tenure.' Such land belongs to Government and could not be alienated by the grantee. The regulation of the Governor-General passed on September, 1836, (see 57 IA 3391 p. 343) states one of the usual conditions of a grant as follows:

"The Government to retain the power of resumption at any time, on giving one month's notice and paying the value of such buildings as may have been authorised to be erected."

(see cl. 6, condition 1.) The site on which the serai stands is expressly excluded from the mortgage. The mortgaged serai had also vacant land appurtenant to it.

[5] Chaudhri Nathu, the mortgagor, died in 1889. The plaintiff purchased the equity of redemption in the property in 1935, from defendants 11 and 12, the sons of Mt. Mohammadi Begum, the daughter of Choudhri Nathu, alleging that she was his sole heir and after her death, defendants 11 and 12 became the owners of the property ; and instituted the suit for redemption out of which the consolidated appeals arise. Mt. Mohammadi Begum died on 12-9-1891.

[6] Defendants 4 to 8 are the contesting defendants in the suit. On the death of Chaudhri Nathu, Mt. Babo Jan, his widow, sold the property in 1890 to Lorinda Mal, the mortgagee, for Rs. 4000 to liquidate her husband's debts. The defendants stated that Chaudhri Nathu's family was governed by custom and not Muhammadan law, that his widow had power to alienate her husband's properties to pay off his debts, and hence, the suit property could not be redeemed at all. In a family partition in 1930, the suit property was allotted to Parma Nand, a son of Lorinda Mal and the father of defendants 4 to 8. Their predecessors-in-interest had improved and extended the suit property by adding new rooms and buildings to it; and in 1934, their father had obtained a lease from Government of a portion of the site originally mortgaged by Chaudhri Nathu - "1/3 of the site originally under the se