MUBARIK SHAH vs Mst. BAKHMALA AND 3 Other
This matter concerns a petition for special leave to appeal against a High Court judgment that dismissed the petitioner's Regular Second Appeal regarding a property dispute. The petitioner claimed exclusive ownership of certain land, asserting that he had redeemed the property from a mortgage using his own funds and had maintained possession for over 12 years, thereby challenging the inheritance mutation of his deceased brother. The core legal question was whether the act of redeeming mortgaged property confers ownership upon the redeemer or merely substitutes them as the mortgagee, and whether the petitioner could claim the mortgage amount in the current proceedings. The Supreme Court held that the petitioner did not become the owner by redeeming the land; rather, he merely stood in the shoes of the mortgagee. The Court affirmed that the petitioner could not be granted relief for the mortgage amount in the present suit, as his claim was based on exclusive ownership, not mortgage recovery. The principle laid down is that a redeemer of mortgaged property cannot claim ownership based on redemption, and any claim for the recovery of mortgage funds must be pursued through a separate, appropriate suit.
- Does the redemption of mortgaged property by one co-owner confer exclusive ownership upon the redeemer?
- Can a plaintiff who pleads exclusive ownership of property in a suit be granted relief for the recovery of mortgage funds in the same proceedings?
- Does a person who redeems a mortgage on behalf of others merely stand in the shoes of the mortgagee?
ORDER
1. WAHIDUDDIN AHMAD, J.-The property in dispute is 34 kanals and 12 marlas bearing Khasra Nos. 58, 80, 2069/59/60, 61, 62 and 63 in the limits of village Babi Jadid, Tehsil Nowshe: a, District Peshawar.
2. Petitioner alleged that the above property, along with some other property, originally belonged to his father, Habib Shah. On his death, it was inherited by him and his brother Kabal Shah. He alleged that Kabal Shah had sold his entire share in the property. He also faced that he had also sold some of the areas of the property on the 10th April 1922 to Sardar Khan and Najab Khan and from its sale price redeemed some land which his father earlier had mortgaged and was in possession of that land since its redemption and as such has become the owner by that possession for more than 12 years. He, therefore, challenged the inheritance in favour of Mst. Bakhmala and others on the ground that his deceased brother Iqbal Shah had no interest in it and that the inheritance mutation No. 1630 of the said Iqbal Shah attested on the 13th February 1960, was not bind--ing on him.
3. So far as the land redeemed by the petitioner was concerned, it was held that by redemption of the land he had not become owner of the land. At best he stood in the shoes of the mortgagee and could claim the mortgage amount from the heirs of Kabal Shah. On these findings the High Court dismissed the Regular Second Appeal No. 375 of 1966 by judgment dated the 16th May, 1969. The petitioner seeks special leave to file an appeal against the said judgment.
4. It was next contended by the learned counsel for the petitioner that the Courts below should have granted to the petitioner the relief that he was entitled to the payment of the mortgage amount paid by him to redeem the mortgaged property belonging to his father. The petitioner is not entitled to any such relief because the case set up by him in the plaint was that on account of this fact he has become the exclusive owner of the property in dispute. In this connec--tion the High Court has rightly observed that if the plaintiff petitioner had redeemed the land with his own money and his brother had not contributed his share at best he stands in the shoes of the mortgagee. This is quite sufficient to safeguard the interest of the petitioner. It is open to him to recover the amount paid by him for redeeming the property in dispute by filing a separate suit, if so advised. In the present proceedings no such relief can be granted to him. There is no force in the petition which is dismissed.